New Mexico Register / Volume XXXIV,
Issue 12 / June 27, 2023
This is an amendment to
1.8.3 NMAC, Section 7, 9 through 11, 13 through 15, effective 7/1/2023.
1.8.3.7 DEFINITIONS: The following terms
apply to these rules unless their context clearly indicates otherwise:
A. “Appellant”
is a party who requests that
the commission review and change the decision of the hearing officer.
B. “Appellee”
is a party to an appeal
arguing that the hearing officer’s decision is correct and should stand.
C. “Blackout
period” means the period
beginning 60 days before a primary or general election in which a person
against whom a complaint is filed is a candidate, and ending on the day after
that election.
D. “Brief”
is a document summarizing the
facts and points of law of a party’s case. It may be offered to or requested by
a hearing officer or filed in an appeal to the commission. For example, a “brief in chief” is filed with
the commission by the appellant. An
“answer brief” is filed by the appellee in response to the brief-in-chief.
E. “Candidate” as
used in this part, has the same meaning as it does in Subsection G of Section
1-19-26 NMSA 1978 of the Campaign Reporting Act, Section 1-19-25 NMSA 1978.
F. “Case management
system” is the commission’s electronic filing and notification system for
complaints, which may be accessed at [https://proceedings.sec.state.nm.us]
https://sec.nm.gov/proceedings.
G. “Claim”
is a complainant’s allegation
that a respondent violated a particular provision of law.
H. “Designated
district court judge” is an
active or pro tempore district judge who has been appointed by the chief
justice of the supreme court to consider the issuance and enforcement of
subpoenas applied for by the commission.
I. “Discriminatory
practice,” as used in this
part, has the same meaning as it does in Subsection L of Section 28-1-2 of the
Human Rights Act, Section 28-1-1 NMSA 1978.
J. “Lobbyist’s
employer” as used in this
part, has the same meaning as it does in Subsection F of Section 2-11-2 of the
Lobbyist Regulation Act, Section 2-11-1 NMSA 1978.
K. “Meeting” means a meeting of the commission duly noticed and
conducted in compliance with the requirements of the Open Meetings Act, Section
10-15-1 NMSA 1978.
L. “Party”
and “Parties” means the named
persons in a proceeding before the commission or a hearing officer.
M. “Person” means any individual or entity.
N. “Pleading”
means any written request,
motion, or proposed action filed by a party with the hearing officer or
commission.
O. “Qualified
hearing officer” means an
official appointed by the director in accordance with these rules to conduct an
administrative hearing to enable the commission to exercise its statutory
powers.
P. “Records” means all documents, papers, letters, books, maps,
tapes, photographs, recordings and other materials, regardless of physical form
or characteristics, whether or not the records are
required by law to be created or maintained.
[1.8.3.7 NMAC-N, 01/01/2020;
A, 09/14/2021; A, 7/1/2023]
1.8.3.9 COMPLAINTS:
FILING REQUIREMENTS AND LIMITATIONS; AMENDMENTS; NOTICE; TIME LIMITATIONS;
CONSOLIDATION; COMMISSION-INITIATED COMPLAINTS:
A. The commission shall investigate allegations of
violations of any statutes or constitutional provisions over which the
legislature gives it jurisdiction. [Such] Complaints concerning such
violations may be filed against any public official, public employee,
candidate, person subject to the Campaign Reporting Act, government contractor,
lobbyist, lobbyist’s employer, or a restricted donor subject to the Gift Act.
(1) The commission may initiate a proceeding before the
commission concerning an alleged violation:
(a) through the filing of a complaint with the commission
by any person which alleges that the complainant has actual knowledge of the
alleged violation of such statutes or constitutional provisions;
(b) by initiating its own complaint alleging a violation of
any statute or constitutional provision over which the commission has
jurisdiction against a person subject to the jurisdiction of the commission,
pursuant to Paragraph (1) of Subsection C of Section 10-16G-5 NMSA 1978; or
(c) by accepting a complaint filed with another public
agency or legislative body and forwarded by that agency or legislative body to
the commission pursuant to Subsection B or E of Section 10-16G-9 NMSA 1978.
(2) A complaint filed pursuant to Subparagraph (a) of Paragraph
(1) of Subsection A of 1.8.3.9 NMAC, shall:
(a) be filed electronically on the commission’s case
management system, or on a form prescribed by the commission and provided at no
cost to the complainant or in a substantially equivalent form, which the
director or the director’s designee shall record electronically on the
commission’s case management system;
(b) state the name and, to the extent known to the
complainant, the respondent’s mailing address, email address, telephone number,
and public office or other position;
(c) set forth in detail the specific claims against the
respondent and the supporting factual allegations, including, if known to the
complainant, any law that the respondent has allegedly violated;
(d) include any evidence that the complainant has that
supports the complaint, which may include documents, records and names of
witnesses; and
(e) be signed and sworn to by the complainant, under
penalty of false statement.
(3) The director shall reject any complaint filed pursuant
to Subparagraph (a) of Paragraph (1) of Subsection A of 1.8.3.9 NMAC that fails
to state either the respondent’s mailing address or email address, or is not
signed and sworn to by the complainant, under penalty of false statement and
the complainant will have the opportunity to refile the complaint.
(4) A complaint filed
pursuant to Subparagraph (a) of Paragraph (1) of Subsection A of 1.8.3.9 NMAC
may be amended once as a matter of course at any time before a responsive
pleading is served. Otherwise, the
complainant may amend the complaint by leave of the director. An amended complaint must be filed within
seven days of the director’s determination under Paragraph (3) of Subsection [A]
C of 1.8.3.10 NMAC that the commission has jurisdiction over the
complaint.
(5) Unless the director
grants the complainant leave, the commission shall not accept a complaint filed
by a complainant who, within the previous calendar year, filed two complaints
that were subsequently dismissed. In applying
for leave to file a third or subsequent complaint within the same calendar
year, the complainant shall explain how, as compared to the dismissed
complaints, the proposed complaint concerns different facts, asserts different
claims, or asserts claims against different respondents.
(6) By registering and
filing a complaint through the commission’s case management system, a party
agrees to accept electronic service of subpoenas, notices, and other filings as
a condition of submitting filings with the commission.
(7) Any party may represent themselves or may be
represented by a licensed attorney.
Corporations and other non-natural persons must be represented by
counsel.
(a) Any attorney representing party shall enter an
appearance with the commission and register on the commission’s case management
system. Upon receipt of the appearance,
the commission shall direct all official notices and correspondence to the
attorney named in the written appearance, at the address or location stated
therein. Any official notice received by
any named attorney shall be deemed to have been received by the represented
party. An attorney may withdraw from
representing a party before the commission only with leave of the director and
for a reason provided for by Section B of Rule 16-116 NMRA.
(b) If the respondent is a public official or state public
employee subject to a complaint alleging a violation made in the performance of
the respondent’s duties, the respondent is entitled to representation by the
risk management division of the general services department. “Respondent’s duties,” within the meaning of
Subsection K of Section 10-16G-10 NMSA 1978 and this rule, excludes:
(i) conduct
undertaken by an elected public official in furtherance of his or her campaign
for election or reelection; and
(ii) any duty or obligation
that by law is personal, rather than official, in nature.
(8) The commission may proceed with any complaint that is
forwarded to the commission by another public agency, or by the legislature or
a legislative committee pursuant to Subparagraph (c) of Paragraph (1) of
Subsection A of 1.8.3.9 NMAC, according to the terms of any agreement for
shared jurisdiction between the commission and the referring agency or the
legislative body, pursuant to Subsection E of Section 10-16G-9 NMSA 1978.
(9) No complaint may be accepted or considered by the
commission unless the date on which the complaint is received by the
commission, or the date on which the commission votes to initiate a complaint,
falls within the later of two years from the date:
(a) on which the alleged conduct occurred; or
(b) the alleged conduct could reasonably have been
discovered.
(10) For the purpose of applying the two-year statute of
limitations established in Subsection A of Section 10-16G-15 NMSA 1978, the
date on which a complaint is filed with a public agency that refers the
complaint to the commission under the law, or under an agreement for shared
jurisdiction, shall be deemed the date of filing with the commission.
B. The commission shall not adjudicate a complaint filed
against a candidate, except under the Campaign Reporting Act or Voter Action
Act, fewer than 60 days before a primary or general election.
(1) This paragraph does not preclude during the blackout
period:
(a) the dismissal of frivolous or unsubstantiated
complaints, or dismissal or referral of complaints outside the jurisdiction of
the commission, as provided by these rules; [or]
(b) assigning to a hearing officer
and making public a complaint that is found to be supported by probable cause
pursuant to Subsection B of Section 1.8.3.13 NMAC before the blackout period
begins; or
[(b)] (c) an
investigation related to the commission’s discretion to file a court action to
enforce the civil compliance provisions of any statute or constitutional
provision over which the commission has jurisdiction.
(2) For complaints filed during and subject to the
blackout period, the director, or the director’s designee, shall notify the
complainant:
(a) of the provisions of this section regarding the
blackout period;
(b) that the complainant may refer allegations of criminal
conduct to the attorney general or appropriate district attorney at any time;
and
(c) of the deferral of commission action on the complaint
for the duration of the blackout period.
(3) The director, or the director’s designee, shall within
five days notify a candidate named as a respondent in a complaint filed during
the 60-day pre-election blackout period of:
(a) the filing of the complaint;
(b) the specific allegations and violations charged in the
complaint; and
(c) the deferral of commission action on the complaint for
the duration of the blackout period.
C. The commission shall not adjudicate a complaint that
alleges conduct occurring only before July 1, 2019. Any complaint filed with the commission or
referred to the commission that alleges conduct occurring only before July 1, 2019 shall be dismissed and, if applicable, returned to the
referring entity.
D. The director may
consolidate a complaint with any other pending complaint involving related
questions of fact or laws; provided that the consolidation will not unduly
delay resolution of an earlier-filed complaint, unduly prejudice any
complainant, or compromise the right of any complainant or respondent to
confidentiality under these rules.
E. The
Commission may initiate a complaint alleging a violation of any statute or
constitutional provision over which the commission has jurisdiction against a
public official, public employee, candidate, person subject to the Campaign
Reporting Act, government contractor, lobbyist,
lobbyist’s employer, or a restricted donor subject to the Gift Act, if:
(1) any commissioner or the director presents to the
commission information or documents showing a violation of any statute or
constitutional provision over which the commission has jurisdiction;
(2) the director determines that the complaint would be
within the commission’s jurisdiction; and
(3) five commissioners vote to initiate the complaint.
(4) A commissioner’s vote to initiate a complaint pursuant
to this Subsection E is not grounds for recusal pursuant to Subsection A of
1.8.2.8 NMAC.
F. If
the commission initiates any complaint under Paragraph (1) of Subsection C of
Section 10-16G-5 NMSA 1978 and Subsection E of 1.8.3.9 NMAC, then the director
shall:
(1) provide the respondent with notice of the complaint in
accordance with Subsection A of 1.8.3.10 NMAC; and
(2) forward the complaint to the general counsel to
initiate an investigation in accordance with 1.8.3.11 NMAC.
G. If
the director determines that the complaint, either in whole or in part, is
subject to referral to another state or federal agency in accordance with
Subsection D of Section 10-16G-9 NMSA 1978, the terms of an agreement entered
into pursuant to the terms of Subsection E of Section 10-16G-9 NMSA 1978,
Subsection D of Section 10-16-14 NMSA 1978, Subsection C of Section 1-19-34.4
NMSA 1978, or Subsection B of Section 2-11-8.2 NMSA 1978, the director shall
refer some or all claims within the complaint to the appropriate agency and,
within ten days of the referral, provide notice to the respondent of the
referral.
H. When
the commission initiates its own administrative complaint, the commission may
serve in an appellate role after a hearing officer decision, and the commission
will be limited to reviewing the record developed at the hearing. As such, except as provided in Subsection E
of 1.8.3.9 NMAC, Subsections I & J of Section 10-16G-10 NMSA 1978,
Subsection A of Section 10-16G-11 NMSA 1978, Subsection A of 1.8.3.12 NMAC, or
Subsection J of 1.8.3.14 NMAC, the
commission shall not receive any information related to a complaint filed
pursuant to Paragraph (1) of Subsection C of Section 10-16G-5 NMSA 1978 and
Subsection E of 1.8.3.9 NMAC until an appeal is made pursuant to 1.8.3.15 NMAC.
[1.8.3.9 NMAC-N, 01/01/2020;
A, 09/14/2021; A, 7/1/2023]
1.8.3.10 DIRECTOR’S RESPONSIBILITIES UPON RECEIVING A COMPLAINT; RESPONDENT’S OPPORTUNITY TO RESPOND; JURISDICTIONAL REVIEW; REFERRALS; NOTIFICATION TO PARTIES:
A. Within seven days of receiving a complaint, the
director shall notify the respondent of the filing of the complaint; provided
that, for any complaint filed pursuant to Subparagraph (a) of Paragraph (1) of
Subsection A of 1.8.3.9 NMAC, the director shall ensure that the complaint
satisfies the filing requirements set forth in Paragraph (1) of Subsection A of
1.8.3.9 NMAC before notifying the respondent of the filing of the complaint.
B. Upon receiving a complaint pursuant to Subparagraph
(a) or (c) of Paragraph (1) of Subsection A of 1.8.3.9 NMAC, the director
shall, within 10 days, review the complaint to determine whether it is within
the commission’s jurisdiction.
C. If the director determines that a complaint [lies
wholly or in part] is within the jurisdiction of the commission,
unless otherwise provided in Subsection D of this Section [below],
the director shall:
(1) provide the complainant with notice that the
commission has jurisdiction for the complaint;
(2) provide the respondent with notice of the complaint
and inform the respondent that the respondent may file with the commission a
responsive pleading answering the complaint’s assertion of facts and
presenting arguments that the complaint is frivolous, unsubstantiated or not
supported by probable cause within 15 days from the date of receiving the
director’s notification and serve the same upon the complainant; and
(3) forward the complaint to the general counsel to initiate an
investigation. Upon receiving the respondent’s
responsive pleading, the general counsel may request the complainant to file [a
response, which, if requested, is due within 15 days from the date of the
respondent’s responsive pleading. The
response may answer the complaint’s assertion of facts and present arguments
that the complaint is frivolous, unsubstantiated or not supported by probable
cause] a reply by a date set out in the request.
D. If the director determines that the complaint, [either
in whole or in part,] is subject to referral to another state or federal
agency, pursuant to Subsection D of Section 10-16G-9, the terms of an agreement
entered into pursuant to the terms of Subsection E of Section 10-16G-9 NMSA
1978, Subsection D of Section 10-16-14 NMSA 1978, Subsection C of Section
1-19-34.4 NMSA 1978, or Subsection B of Section 2-11-8.2 NMSA 1978, the
director shall refer some or all claims within the complaint to the appropriate
agency and, unless a determination is made under Subsection H of Section
10-16G-10 NMSA 1978 to delay notification, within ten days of the referral,
shall provide notices to the complainant and the respondent of the
referral.
E. If the director determines that the complaint is within
the jurisdiction of the commission and recommends that the commission should
not act on some or all aspects of the complaint, then the commission shall
decide whether to dismiss some or all aspects of the complaint under Subsection
C of Section 10-16G-9 NMSA 1978.
F. If the director determines that the complaint is
neither within the jurisdiction of the commission nor subject to referral to
another agency, the commission shall dismiss the complaint.
G. Subject to Subsection E of Section 1.8.3.15 NMAC, the
director shall notify the complainant and respondent in writing of any action
taken under Subsections [B] C through [E] F of
1.8.3.10 NMAC, unless notification has been delayed by the commission pursuant
to Subsection H of Section 10-16G-10 NMSA 1978 and Subsection E of 1.8.3.15
NMAC. Neither the complaint nor the action taken on the complaint shall be made
public by the commission or any staff member or contractor of the commission,
but the complainant or respondent shall not be prevented from making public the
complaint or any action taken on the complaint.
H. With respect to any complaint filed with or under
investigation by the commission, the
director shall consult with the attorney general, an appropriate district
attorney or the United States attorney if:
(1) when reviewing a complaint for jurisdiction, the
director determines that the complaint alleges conduct on the part of the
respondent or another that appears reasonably likely to amount to a criminal
violation; or
(2) the commission, any commission staff member, or any
commission hearing officer finds at any time that a respondent’s conduct
appears reasonably likely to amount to a criminal violation.
(3) Nothing in Section 10-16G-14 NMSA 1978 or in this
section prevents the commission from taking any action authorized by the State
Ethics Commission Act or deciding to suspend an investigation pending
resolution of any criminal charges.
[1.8.3.10 NMAC-N, 01/01/2020;
A, 09/14/2021; A, 7/1/2023]
1.8.3.11 GENERAL COUNSEL’S INVESTIGATION:
A. Upon receiving notice of the director’s determination that the
commission has [full or partial] jurisdiction over the complaint, the
general counsel shall determine whether the complaint is frivolous or
unsubstantiated, or supported by probable cause.
B. To perform the investigation into whether probable cause supports the
complaint, the general counsel, or the general counsel’s designee, may
administer oaths, interview witnesses under oath, and examine books, records,
documents and other evidence reasonably related to the complaint. The general counsel, or the general counsel’s
designee, may:
(1) Request to inspect books,
records, documents and other evidence reasonably related to a complaint;
request the complainant or respondent to admit certain facts; and serve written
interrogatories, to be responded to under oath at a time therein specified;
(2) Interview a witness under oath and outside the presence of the parties;
and
(3) Notice and take the deposition of
any person, including any party, subject to the following provisions:
(a) The
general counsel, or the general counsel’s designee, may put the witness on oath
or affirmation and shall personally, or by someone acting at the general
counsel’s direction, record the testimony of the witness.
(b) Any
objection during a deposition shall be stated concisely in a non-argumentative
and non-suggestive manner. Objections to
form or foundation may only be made by stating “objection—form” or
“objection—foundation”. When a question
is pending, or a document has been presented to the witness, no one may
interrupt the deposition until the answer is given, except when necessary to
preserve a privilege.
(c) All
objections shall be noted by the general counsel or the general counsel’s
designee upon the record of the deposition; but the examination shall proceed,
with the testimony being taken subject to the objections, except where the
objection is based on an assertion of privilege made in good faith.
(d) The
general counsel, or the general counsel’s designee, shall certify on the
deposition that the witness was duly sworn by the general counsel or the
general counsel’s designee and that the deposition is a true record of the
testimony given by the witness.
(e) A witness who appears at a deposition
may receive one day’s expenses provided by Subsection A of Section 10-8-4 NMSA
1978 as per diem for nonsalaried public officers
attending a board or committee meeting and the mileage provided by Subsection D
of Section 10-8-4 NMSA 1978. The Commission
is not required to tender expenses and mileage before the witness appears at a
deposition, and may require the witness to provide information needed to
facilitate payment of expenses and mileage (such as IRS form W9) as a condition
of payment.
C. It is
not grounds for objection that the information sought will be inadmissible at
the hearing if the information sought appears reasonably calculated to lead to
the discovery of admissible evidence. If
a party refuses to respond to the general counsel’s request for information or
discovery requests, to attend a deposition, or to answer questions at a
deposition noticed under this subsection, unless the party’s refusal is based
on an assertion of privilege made in good faith, the general counsel, when deciding
whether a complaint is supported by probable cause, may draw an adverse
inference against the party refusing to testify. If a party fails to provide information or
identify a witness in response to a request by the general counsel, the party
is not allowed to use that information or witness to supply evidence on a
motion, at a hearing, or on appeal, unless either a hearing officer or the
commission determines the failure was substantially justified or is harmless.
[1.8.3.11 NMAC-N, 01/01/2020;
A, 09/14/2021; A, 7/1/2023]
1.8.3.13 [GENERAL COUNSEL’S] PROBABLE CAUSE
DETERMINATIONS AND CONSEQUENCES; INVESTIGATION REPORTS AND RECOMMENDATIONS TO
COMMISSION; DISPOSITION BY AGREEMENT; NOTICE TO PARTIES:
[A. If the general counsel finds probable cause to support
the allegations of the complaint, the general counsel shall report promptly the
general counsel’s findings and recommendations to the director, and the
director shall:
(1) promptly
notify both the complainant and the respondent:
(a) of the specific claims and allegations in the
complaint that were the subject of the general counsel’s investigation;
(b) of the finding of probable cause as to specific
claims; and
(c) that a public hearing before a hearing officer will be
set, provided that the notification has not been delayed
by order of the commission pursuant to Subsection H of Section 10-16G-10 NMSA
1978; and
(2) designate
a qualified hearing officer to conduct a hearing on the complaint if so recommended by the general counsel. Based on the report of the general counsel,
the hearing officer will set a public hearing as soon as practicable.
B] A. At the conclusion of the investigation
provided by 1.8.3.11 NMAC, the general counsel shall determine whether the
complaint is frivolous or unsubstantiated.
(1) If [after
completing the investigation,] the general counsel determines that a
complaint is [not supported by probable cause] frivolous or
unsubstantiated, a hearing officer must dismiss the complaint. In that event, the complainant and the
respondent shall be notified in writing of the decision and the reasons for the
dismissal. Neither the complaint nor the
action taken on the complaint shall be made public by the commission or any
staff member or contractor of the commission, but the complainant or respondent
shall not be prevented from making public the complaint or any action taken on
the complaint.
(2) If the general counsel determines that a complaint is not
frivolous or unsubstantiated, the general counsel shall prepare a summary of
the investigation and a specification setting forth all violations reasonably
related to the allegations in the complaint.
The general counsel shall provide the summary, the specification, and
all supporting evidence to the executive director. The executive director shall designate a
hearing officer meeting the qualifications set out in Subsection A of 1.8.3.14
NMAC to determine whether the complaint is supported by probable cause.
B. Within
30 days of being appointed pursuant to Paragraph 2 of Subsection A of this
Section, the hearing officer shall enter a written decision as to whether the
complaint is supported by probable cause. To determine whether the complaint is
supported by probable cause, the hearing officer must find that the evidence
supports a finding that a violation has occurred. The degree of proof necessary to establish
probable cause is more than a suspicion or possibility but less than a
certainty of proof.
(1) If the hearing officer decides
that the complaint is supported by probable cause, the hearing officer shall
prepare a written order to that effect and provide it to the executive
director. The executive director shall
then promptly notify both the complainant and the respondent of the hearing
officer’s determination and that a public hearing will be set, provided
that the notification has not been delayed by order of the commission pursuant
to Subsection H of Section 10-16G-10 NMSA 1978.
(2) If the hearing officer decides that the complaint is
not supported by probable cause, the executive director shall promptly notify
both the complainant and the respondent of the hearing officer’s decision and
inform the complainant of their right to appeal the hearing officer’s decision
to the commission pursuant to 1.8.3.15 NMAC.
C. The general counsel may at any time enter into a proposed settlement
agreement of the complaint with the respondent.
The proposed settlement agreement shall be presented to the commission
for approval. If the complaint alleges,
or the general counsel has found probable cause to support, a discriminatory
practice or action by the respondent against the complainant, no settlement
agreement may be reached without prior consultation with the complainant. If approved by the commission, the settlement
agreement shall be subject to public disclosure.
D. At
any time, the complainant may voluntarily dismiss the complaint, either in
whole or in part, by filing a notice of voluntarily dismissal with the
commission; however, any notice of voluntary dismissal does not diminish the
power of the commission to initiate a complaint under Paragraph 1 of Subsection
C of Section 10-16G-5 NMSA 1978. If the general
counsel has determined the complaint is supported by probable cause, the
complainant may dismiss the complaint only on motion and on such terms and
conditions as the hearing officer deems proper.
E. If a hearing has not been scheduled concerning the disposition of a
complaint within 90 days after the complaint has been received from the
complainant or after referral from another agency, whichever is later, the
director shall report to the commission at a duly convened meeting on the
status of the investigation. The
commission and the director shall thereafter proceed in accordance with Section
10-16G-11 NMSA 1978.
F. At
any time before or during a hearing, the hearing officer may, at a duly
convened public meeting, approve a disposition of a complaint agreed to by the
general counsel and the respondent, provided that:
(1) the complainant shall be consulted on the proposed agreement prior to
its execution, and
(2) the agreement shall be effective upon approval by the commission at a
public meeting.
[1.8.3.13 NMAC-N, 01/01/2020;
Rn 1.8.3.12 NMAC & A, 09/14/2021; A, 7/1/2023]
1.8.3.14 HEARING OFFICERS; SUMMARY
DISPOSITION; HEARINGS; INTERPRETERS; EVIDENCE:
A. The commission shall authorize
the director to contract, for reasonable hourly compensation, with qualified
persons to act as hearing officers. Hearing officers shall be assigned to act
on or preside over hearings on complaints. Hearing officers must be currently
licensed attorneys, or retired judges of the appellate, district, or metropolitan
courts of New Mexico or any federal court, who are familiar with the ethics and
election laws enforced by the commission.
A hearing officer shall conduct a hearing fairly and impartially. A hearing officer who determines whether a
complaint is supported by probable cause pursuant to Subsection B of Section
1.8.3.13 NMAC shall not preside over a hearing on the merits of the same
complaint.
B. All hearings before the hearing
officer will occur in Santa Fe or Albuquerque, or at such other location within
the state as may be determined by the hearing officer. In selecting the
location of a hearing other than in Santa Fe or Albuquerque, the hearing
officer shall consider and give weight to the location and reasonable concerns
of the respective parties, witnesses, and representatives in the
proceeding. Upon a showing by any party
of an undue burden, the hearing officer may move the hearing to a more
appropriate venue.
C. If a hearing officer has not already
notified the parties of a hearing through the issuance of a scheduling order,
the director will notify the parties to the hearing by mail, directed to the
address provided by the parties, of the date, time, and place scheduled for the
hearing, at least 15 days before the scheduled hearing.
D. The hearing shall be conducted
pursuant to the rules of evidence governing proceedings in the state courts,
Rule 11-101 NMRA, and these procedural rules.
In the event of a conflict between these procedural rules and the rules
of evidence governing proceedings in the state courts, these procedural rules
control. All hearings shall be open to
the public in accordance with the Open Meetings Act, Section 10-15-1 NMSA 1978,
except for hearings or portions thereof exempted from the requirements of that
Act.
E. Audio recordings shall be made of
all hearings conducted pursuant to this section.
F. The
parties may be represented by counsel, who shall enter an appearance at the
earliest opportunity, pursuant to Paragraph (7) of Subsection A of 1.8.3.9
NMAC.
G. The hearing officer shall permit the
general counsel to intervene upon request.
If the complaint was initiated by the commission under Paragraph (1) of
Subsection C of Section 10-16G-5 NMSA 1978 and Subsection E of 1.8.3.9 NMAC,
then the [general counsel] executive director shall represent the
commission at the hearing.
H. The hearing officer shall have the
duty to conduct fair and impartial hearings, to take all necessary action to
avoid delay in the proceedings and to maintain order. The hearing officer shall
have the powers necessary to carry out these duties, including the following:
(1) to administer or have administered
oaths and affirmations;
(2) to
cause depositions to be taken;
(3) to
require the production or inspection of documents and other items;
(4) to
require the answering of interrogatories and requests for admissions;
(5) to rule upon offers of proof and
receive evidence;
(6) to regulate
the course of the hearings and the conduct of the parties and their
representatives therein;
(7) to
issue a scheduling order, schedule a prehearing conference for simplification
of the issues, or any other proper purpose;
(8) to
schedule, continue and reschedule hearings;
(9) to
consider and rule upon all procedural and other motions appropriate in the
proceeding;
(10) to
require the filing of briefs on specific legal issues prior to or after the
hearing;
(11) to cause
a complete audio record of hearings to be made;
(12) to make
and issue decisions and orders; and
(13) to
reprimand, or with warning in extreme instances exclude from the hearing, any
person for engaging in a continuing pattern of disruptive or other improper
conduct that interferes with the conduct of a fair and orderly hearing or
development of a complete record.
I. In the performance of these
adjudicative functions, the hearing officer is prohibited from engaging in any
improper ex parte
communications about the substantive issues with any party on any matter, but
may communicate with parties separately solely on scheduling issues if all
parties are notified of such communications and do not object to them. An improper ex parte communication occurs when the
hearing officer discusses the substance of a case without the opposing party
being present, except that it is not an improper ex parte communication for the hearing
officer to go on the record with only one party when the other party has failed
to appear at a scheduled hearing despite having received timely notice thereof.
J. Parties
who appear at the hearing may:
(1) request
the director to request the commission’s authority to petition a district court
to compel the presence of witnesses.
Subpoenas may be requested by the commission from a district court in
the same manner as provided for in Subsection J of Section 10-16G-10 NMSA 1978
and Subsections C and D of 1.8.3.11 NMAC;
(2) present
evidence and testimony;
(3) examine
and cross-examine witnesses; and
(4) introduce
evidentiary material developed by the general counsel. Before the hearing, the general counsel shall
timely disclose to the parties all evidence in the possession or within the
control of the general counsel, other than privileged information.
K. Evidence
shall be presented by the parties at the hearing consistent with the terms
agreed to in a prehearing conference or as set forth in a scheduling order
entered under Subsection H of 1.8.3.14 NMAC.
The hearing officer may allow a deviation from the agreed-upon process
for good cause.
(1) The general counsel shall present any evidence
collected in the investigation relating to the complaint that is relevant to
the matters at issue as set forth in the general counsel’s findings under
Subsection A of 1.8.3.12 NMAC; evidence that is agreed to be relevant by the
parties; or evidence that is allowed by the hearing officer. If the general counsel has intervened as a
party pursuant to Section G of 1.8.3.14 NMAC, the general counsel must be
afforded a reasonable opportunity to seek prehearing discovery necessary to
meet any anticipated defense raised by the respondent to the claims identified
in the specification of violations prepared by the general counsel pursuant to
Subsection B of 1.8.3.13 NMAC.
(2) The respondent may present
evidence that is relevant to the matters at issue as set forth in the general
counsel’s findings under Subsection A of 1.8.3.12 NMAC; evidence that is agreed
to be relevant by the parties; or evidence that is otherwise allowed by the
hearing officer.
(3) The general counsel or the general counsel’s designee
may authenticate evidence produced during an investigation if the source of the
evidence declines a request to appear and testify about the evidence and the
hearing officer determines that there are no other reasonable means for
authenticating the evidence.
L. Any
person may timely file an amicus brief, not to exceed ten pages, with the
director, for consideration by the hearing officer.
M. Upon
reasonable notice by the party to the director, a party needing language
interpreter services for translation of one language into another, and any
interpreter required to be provided under the American with Disabilities Act,
shall be provided for by the commission. While the person serving as an
interpreter need not be a court-certified interpreter in
order to provide interpretation at a hearing, any person serving as an
interpreter in a hearing before the commission must affirm the interpreter’s
oath applicable in courts across this state.
N. After
the termination of the hearing, or in lieu of a hearing if, upon a motion by a
party or the general counsel, the hearing officer concludes there is no genuine
dispute as to any material facts, the hearing officer shall issue written findings
and conclusions on whether the evidence establishes that the respondent’s
conduct as alleged in the complaint constitutes a violation of any law within
the jurisdiction of the commission. The
hearing officer’s written decision:
(1) may
(a) impose
any fines provided for by law; and
(b) recommend to the appropriate authority commensurate disciplinary action
against the respondent;
(2) and
must
(a) state
the reasons for the hearing officer’s decision; and
(b) provide the parties with notice of the right of appeal to the
commission.
O. Clear
and convincing evidence is required to support a finding by a hearing officer
that a respondent’s conduct was fraudulent or willful.
P. If the hearing officer finds by a preponderance of the evidence that
the respondent’s conduct as alleged in the complaint constituted a violation of
the Governmental Conduct Act and was either unintentional or for good cause,
then the hearing officer shall give the respondent 10 days to correct the
violation, pursuant to Subsection B of Section 10-16-13.1 NMSA 1978, before
taking any action under Subsection N of 1.8.3.14 NMAC.
Q. If the
hearing officer finds by a preponderance of the evidence that the respondent’s
conduct as alleged in the complaint does not constitute a violation of any law
within the jurisdiction of the commission, the hearing officer, in a written
decision, shall dismiss the complaint and inform the complainant of their right
to appeal to the commission.
R. A
party may request copies of evidence considered by the hearing officer or a
copy of the audio recording of the hearing by submitting a written request to
the director. The director may charge a
reasonable fee for copies made, consistent with its fee schedule under the
Inspection of Public Records Act. The
director may also require the requesting party to submit a new, sealed computer
storage device, such as a compact disc, dvd disc, or usb drive, or other tangible device for copying of any
audio or video recording that is part of the administrative record. Every party
is responsible for paying the cost of any transcription of the audio recording.
[1.8.3.14 NMAC-Rn 1.8.3.13
NMAC & A, 09/14/2021; A, 7/1/2023]
1.8.3.15 APPEALS; ENFORCEMENT:
A. The complainant or respondent
may appeal the final decision of the hearing officer within 30 days of the
issuance of the decision to the full commission by filing a notice stating:
(1) each
party taking the appeal and each party against whom the appeal is taken;
(2) the
name, address, telephone number and email address of counsel for the appellant;
(3) the
decision or part of a decision from which the party appeals; and
(4) the
specific grounds for the appeal, including specific references to any evidence
or law interpreted by the hearing officer.
(5) If the hearing officer issued a final decision on a
complaint that was initiated by the commission under Paragraph (1) of
Subsection C of Section 10-16G-5 NMSA 1978 and Subsection E of 1.8.3.9 NMAC, or
where the general counsel has intervened under Section G of 1.8.3.14 NMAC, then
the general counsel may appeal the hearing officer’s decision within 30 days of
the issuance by filing a notice stating the information required in subsections
(1) through (4) above.
B. For the purpose of
this rule, briefing time shall commence from the date the appellant files a
notice of appeal to the full commission.
Unless otherwise provided for by the commission,
(1) The appellant shall file and serve a
brief in chief within 15 days;
(2) The
appellee shall file and serve an answer brief within 15 days after service of
the brief of the appellant; and
(3) Neither
the brief in chief nor the answer brief shall exceed 10 pages.
C. The commission shall schedule oral
arguments, if requested by either party or ordered by the commission within
sixty days of the notice of appeal.
D. Any person may timely file an amicus
brief, not to exceed ten pages, with the director for consideration by the
commission.
E. The commission shall review the
whole record of the proceeding and shall, within 180 days of receiving the
notice of appeal, issue its decision upholding or reversing the decision of the
hearing officer. The commission may reverse all or part of the hearing
officer’s decision and remand the matter to the hearing officer for further
proceedings.
[F.] (1) If a hearing officer dismisses a complaint, pursuant to Subsection B of
1.8.3.13 NMAC, following the general counsel’s determination that the complaint
is [not supported by probable cause] frivolous or unsubstantiated,
then the complainant has no right to an appeal of that dismissal to the
commission. If the general counsel
does not determine that the complaint is frivolous or unsubstantiated
but the hearing officer dismisses the complaint for lack of probable cause, the
complainant may appeal that decision to the commission.
(2) If the hearing officer decides that a complaint is supported
by probable cause pursuant to Subsection G of Section 10-16G-10 NMSA 1978, the
respondent has no right to appeal that decision to the commission.
[G.]
F. A party may seek review of the commission’s final
decision by filing for a petition of writ of certiorari pursuant to Rule 1-075
NMRA. In any action to review a final
decision by writ of certiorari, or, if no petition for writ of certiorari has
been timely filed, in a court action in the judicial district where the
defendant resides, the commission may move for an order enforcing the
commission’s final decision pursuant to Subsection F of Section 10-16G-9 NMSA
1978.
[1.8.3.15 NMAC-, Rn 1.8.3.14
NMAC & A, 09/14/2021; A, 7/1/2023]