TITLE 1 GENERAL
GOVERNMENT ADMINISTRATION
CHAPTER 2 ADMINISTRATIVE PROCEDURES
PART 3 PUBLIC REGULATION COMMISSION EX
PARTE COMMUNICATIONS
1.2.3.1 ISSUING AGENCY: New
Mexico Public Regulation Commission.
[1.2.3.1 NMAC - N,
7-15-04]
1.2.3.2 SCOPE: This rule
applies to commissioners, hearing examiners, advisory staff, and any party to a
commission proceeding.
[1.2.3.2 NMAC - N,
7-15-04]
1.2.3.3 STATUTORY AUTHORITY: NMSA
1978 Section 8-8-17.
[1.2.3.3 NMAC - N,
7-15-04]
1.2.3.4 DURATION:
Permanent.
[1.2.3.4 NMAC - N,
7-15-04]
1.2.3.5 EFFECTIVE DATE: July
15, 2004, unless a later date is cited at the end of a section.
[1.2.3.5 NMAC - N,
7-15-04]
1.2.3.6 OBJECTIVE: The
purpose of this rule is to implement NMSA 1978 Section 8-8-17 by regulating ex
parte communications concerning commission proceedings so as to ensure the
fairness and integrity of the commission’s decision-making process.
[1.2.3.6 NMAC - N,
7-15-04]
1.2.3.7 DEFINITIONS: As
used in this rule:
A. advisory staff means a person hired by the chief of staff, with the consent of the
commission, with expertise in regulatory law, engineering, economics or other
professional or technical disciplines, to advise the commission on any matter
before the commission, including a member of the commission’s office of general
counsel or an expert or staff hired by the chief of staff on a temporary, term
or contract basis for a particular case, but not including persons hired by an
individual commissioner who serve at the pleasure of that commissioner;
B. ex parte communication means a direct or indirect communication with a party or his
representative, outside the presence of the other parties, concerning a pending
rulemaking after the record has been closed or a pending adjudication, that
deals with substantive matters or issues on the merits of the proceeding,
including any attachments to a written communication or documents shown in
connection with an oral presentation that deals with substantive matters or
issues on the merits of the proceeding;
(1) ex parte
communications do not include:
(a) statements made by commissioners, hearing
examiners, or advisory staff that are limited to providing publicly available
information about a pending adjudication or rulemaking after the record has
been closed; or
(b) inquiries
relating solely to the status of a proceeding, including inquiries as to the
approximate time that action in a proceeding may be taken;
(2) ex parte
communications include a status inquiry which states or implies:
(a) a view as to the
merits or outcome of a rulemaking after the record has been closed or a pending
adjudication;
(b) a preference for
a particular party, or a reason why timing is important to a particular party;
(c) a view as to the
date by which a proceeding should be resolved; or
(d) a view which is
otherwise intended to address the merits or outcome, or to influence the
timing, of a pending adjudication or rulemaking after the record has been
closed;
C. hearing examiner means a person appointed by the
commission pursuant to NMSA 1978 Section 8-8-14 to preside over any matter
before the commission, including rulemakings, adjudicatory hearings and
administrative matters, and provide the commission with findings of fact,
conclusions of law, and a recommended decision on the matter assigned;
D. non-adjudicatory
notice of inquiry means a proceeding commenced by the commission’s issuance
of a notice entitled “non-adjudicatory notice of inquiry” for the purpose of
inquiring into issues of broad applicability to consumers or regulated entities,
or to a class or type of consumers or regulated entities, with a view toward
possible future rulemaking or other procedures where the proceeding does not
directly concern a dispute between particular parties or company-specific
regulatory issues;
E. party, unless otherwise ordered by the commission,
means:
(1) a person who has
been given formal party status;
(2) a person who has submitted to the
commission a filing seeking affirmative relief, including, but not limited to,
an application, waiver, motion, tariff change or petition;
(3) a person who has filed a formal complaint,
petition for order to show cause, petition for investigation or petition for
notice of inquiry;
(4) the subject of a
formal complaint, order to show cause, investigation or notice of inquiry;
(5) members of the
general public, after the issuance of an order closing the record in a
rulemaking proceeding; and
(6) staff of the commission’s utility
division, transportation division, or insurance division directed by statute to
represent the public interest in a proceeding before the commission;
F. pending adjudication means any matter docketed, or, in the case of a party represented by
counsel, any matter that an attorney representing such party reasonably
believes will be docketed, before the commission, including, but not limited
to, formal complaint proceedings, show cause proceedings, investigations,
notices of inquiry other than non-adjudicatory notices of inquiry, application proceedings, petitions, and any
matter other than a rulemaking or a non-adjudicatory notice of inquiry requiring decision or action by the
commission.
[1.2.3.7 NMAC - N,
7-15-04; A, 9-1-08]
1.2.3.8 EX PARTE COMMUNICATIONS
PROHIBITED:
A. A
commissioner shall not initiate, permit, or consider a communication directly
or indirectly with a party or his or her representative, outside the
presence of other parties, concerning a pending rulemaking after the record has
been closed or a pending adjudication.
B. A hearing examiner shall not initiate, permit or consider
a communication directly or indirectly with a party or his or her
representative, outside the presence of other parties, concerning a
pending rulemaking after the record has been closed or a pending adjudication.
C. Advisory
staff shall not initiate, permit, or consider a communication directly or
indirectly with a party or his or her representative, outside the presence of
other parties, concerning a pending rulemaking after the record has been closed
or a pending adjudication.
[1.2.3.8 NMAC - N,
7-15-04]
1.2.3.9 EX PARTE COMMUNICATIONS
PERMITTED:
A. Procedural or administrative purposes. Where circumstances require, ex parte
communications for procedural or administrative purposes or emergencies, that
do not deal with substantive matters or issues on the merits, may be permitted
if the commissioner, hearing examiner, or advisory staff reasonably believes that
no party will gain an advantage as a result of the ex parte communication and
the commissioner, hearing examiner, or advisory staff makes provisions promptly
to notify all other parties of the substance of the ex parte communication.
B. Uncontested proceedings. Ex
parte communications may be permitted concerning pending adjudications in which
the matter is ripe for decision and no party to the proceeding, including
staff, is in opposition to the relief requested.
C. Internal commission communications.
Commissioners, hearing examiners and advisory staff may consult with
each other.
D. Nonparty expert. A commissioner or hearing
examiner may obtain the advice of a nonparty expert on an issue raised in the
rulemaking or adjudication if the commissioner or hearing examiner gives notice
to the parties of the person consulted and the substance of the advice and
affords the parties reasonable opportunity to respond.
[1.2.3.9 NMAC - N,
7-15-04]
1.2.3.10 DISCLOSURE REQUIRED: A
commissioner, hearing examiner, or advisory staff member who receives, makes,
or knowingly causes to be made a communication prohibited by this rule shall
disclose it to all parties and give other parties an opportunity to
respond. The person to whom the
prohibited communication was made shall:
A. disclose
the prohibited communication by filing a copy of a written communication or a
summary of an oral communication in the record of the proceeding within five
(5) calendar days of the communication; and
B. serve the disclosure on all parties to the proceeding
in accordance with Subsection C of 17.1.2.10 NMAC, except in proceedings
involving numerous parties where the commission or hearing examiner determines
that disclosure by publication would better serve administrative economy.
[1.2.3.10 NMAC - N,
7-15-04]
1.2.3.11 SANCTIONS: Upon
receipt of a communication knowingly made or caused to be made by a party to a
commissioner, hearing examiner, or advisory staff member in violation of NMSA
1978 Section 8-8-17 or this rule, the commissioner or hearing examiner may,
pursuant to Subsection E of that section, require the party to demonstrate that
no unfair advantage was gained from the communication, may permit other parties
the opportunity to respond, and may dismiss, deny, disregard, or otherwise take
adverse action on the claim or interest in the proceeding.
[1.2.3.11 NMAC - N,
7-15-04]
HISTORY OF 1.2.3 NMAC:
[Reserved]