TITLE 10 PUBLIC SAFETY AND
LAW ENFORCEMENT
CHAPTER 12 PUBLIC DEFENDER DEPARTMENT
PART 12 ADJUDICATION
10.12.12.1 ISSUING
AGENCY: Public Defender Commission
[10.12.12.1 NMAC - N,
7/1/2015]
10.12.12.2 SCOPE: Applies to all employees in career
status.
[10.12.12.2 NMAC - N,
7/1/2015]
10.12.12.3 STATUTORY
AUTHORITY: Section 10-15-1(H) NMSA 1978;
Section 31-15-2.4(B)(6) NMSA 1978 and Section 31-15-7 NMSA 1978.
[10.12.12.3 NMAC - N,
7/1/2015]
10.12.12.4 DURATION: Permanent.
[10.12.12.4 NMAC - N,
7/1/2015]
10.12.12.5 EFFECTIVE
DATE: 7/1/2015 unless a later date is
cited at the end of a section.
[10.12.12.5 NMAC - N,
7/1/2015]
10.12.12.6 OBJECTIVE: The objective of Part 12 of Chapter
12 is:
to provide a system for career status employees to appeal disciplinary
actions.
[10.12.12.6 NMAC - N,
7/1/2015]
10.12.12.7 DEFINITIONS:
A. “Discipline Review Board” or “board” means a three member
board to hear disciplinary appeals composed of one district defender, one
neutral hearing officer and one employee appointed by the chief from a pool of
volunteers.
B. “Chairperson”
means the district defender appointed to the board.
C. “Neutral
hearing officer” means a hearing officer on contract with the department
selected by the chief in consultation with the pool of volunteer employees.
D. “Pool”
means employees selected by each district to serve as
a volunteer on the disciplinary review board.
[10.12.12.7 NMAC - N, 7/1/2015]
10.12.12.8 FILING
AN APPEAL:
A. Employees
who have completed the probationary period as required by Subsection A of
10.12.2.8 NMAC and have been demoted, dismissed, or suspended have the right to
appeal to the discipline review board at a public hearing.
B. A
notice of appeal must be in writing and filed with the human resource director
no later than 30 calendar days from the effective date of the dismissal,
demotion, or suspension. A copy of the notice of final action and a statement
of the grounds for the appeal must accompany the notice of appeal. Appeals not
filed within 30 calendar days shall be dismissed by the human resource director
for lack of jurisdiction.
C. Within
15 days from the date of dismissal, an appellant may request a hearing in which
to present evidence challenging a dismissal for lack of jurisdiction. If a hearing on the dismissal is held, human
resource director shall submit a recommended decision to the deputy chief which
shall contain a summary of the evidence and findings of fact and conclusions of
law. The deputy chief shall then issue a
final decision.
D. Upon
acceptance of a notice of appeal, the chief shall appoint a district defender
to serve as the chairperson of the disciplinary review board. The chairperson shall issue a scheduling order directing the
parties, in part, to submit to the chairperson a stipulated pre-hearing order
for his/her approval, which shall contain at least: a statement of any
contested facts and issues; proposed stipulation of those facts not in dispute;
the relief or remedy requested by the appellant; a deadline for disclosure of
all probable witnesses with a brief summary of their anticipated testimony and
documentary evidence; a list of
exhibits; a deadline for the completion
of discovery and filing of motions; a deadline for requesting subpoenas; and
whether the parties agree to participate in voluntary alternative dispute
resolution.
(1) The
chairperson may further revise the pre-hearing order.
(2) Any
discussion concerning possible settlement of an appeal shall not be a part of
the pre-hearing order and may not be introduced at the hearing.
[10.12.12.8 NMAC - N, 7/1/2015]
10.12.12.9 AGENCY WITHDRAWAL OF DISCIPLINE:
A. The
department may withdraw a completed disciplinary action prior to commencement
of a disciplinary review board hearing so long as the appellant is fully
restored to pre-disciplinary status insofar as employment, back pay and
benefits are concerned.
B. Upon
department withdrawal of a disciplinary action, the chairperson may dismiss the
appeal without prejudice to the department, which may reinitiate disciplinary
action.
[10.12.12.9 NMAC - N, 7/1/2015]
10.12.12.10 CHAIRPERSON:
A. The
chairperson shall not participate in any adjudicatory proceeding if, for any
reason, the hearing officer cannot afford a fair and impartial hearing to
either party. Either party may ask the chief public defender to disqualify the
designated chairperson for cause by filing an affidavit of disqualification within
14 calendar days of the order. The affidavit must state the particular grounds
for disqualification. The designated chairperson shall rule on motions for
disqualification and an appeal of the ruling may be made to the deputy chief
within 14 calendar days of the hearing officer's ruling.
B. No
person shall communicate concerning the merits of any pending adjudicatory
proceeding with the designated chairperson or member of the disciplinary review
board unless both parties or their representatives are
present.
C. The
chairperson may dismiss an appeal with prejudice in accordance with the
provisions of a settlement agreement approved by the chairperson or upon the
filing of a motion to withdraw the appeal at any time.
D. The
chairperson may dismiss an appeal with prejudice upon the filing of a motion to
withdraw the appeal after the deadline for the completion of discovery upon
such terms and conditions as the chairperson deems proper.
[10.12.12.10 NMAC - N, 7/1/2015]
10.12.12.11 CONSOLIDATION
AND JOINDER:
A. The
chairperson may consolidate cases in which two or more appellants have cases
containing identical or similar issues.
B. The
chairperson may join the appeals of an appellant who has two or more appeals
pending.
C. The
chairperson may consolidate or join cases if it would expedite final resolution
of the cases and would not adversely affect the interests of the parties.
[10.12.12.11 NMAC - N, 7/1/2015]
10.12.12.12 DISCOVERY: The chairperson has the power to
compel, by subpoena or order, the production of written materials or other
evidence the chairperson may deem relevant or material. The parties shall have
a right to discovery limited to depositions, interrogatories, requests for
production, and requests for admission and witness interviews. All discovery shall be subject to the control of the
chairperson.
[10.12.12.12 NMAC - N, 7/1/2015]
10.12.12.13 MOTIONS:
A. Any
defense, objection, or request that can be determined on the merits prior to a hearing
may be raised by motion before the deadline set by the chairperson unless good
cause is shown for the delay.
B. Prior
to filing the motion, the filing party shall determine whether the non-filing
party concurs with the motion. If the non-filing party concurs, the filing
party shall include a stipulated order with the motion. If the non-filing party
does not concur, the filing party shall indicate the non-concurrence in the
motion and include a proposed order.
C. A
response to a motion is due 12 calendar days from the date of filing of the
motion. A reply to a response is due seven days from the date of filing the
response. The response and reply schedule may also be set or modified by the
chairperson.
D. Responses
to any motions shall be filed according to a schedule set by the chairperson.
E. During
the course of a hearing, motions may be renewed or made for the first time, if
such a motion then becomes appropriate.
F. The
chairperson shall rule on all motions except for dispositive motions on the
merits.
[10.12.12.13 NMAC - N, 7/1/2015]
10.12.12.14 ADDITIONAL
WITNESSES: Witnesses who are not disclosed by
the deadline contained in the pre-hearing order shall not be permitted to
testify except for good cause shown and to prevent manifest injustice.
[10.12.12.14 NMAC - N, 7/1/2015]
10.12.12.15 SUBPOENAS:
A. The
chairperson has the power to subpoena witnesses.
B. The
chairperson has the power to subpoena documents or other tangible items.
C. Subpoenas shall be prepared in
triplicate by the party requesting the subpoena and will be issued by the
hearing officer. A copy of each subpoena
shall be sent to the opposing party by the requesting party, together with a
transmittal letter listing all persons subpoenaed.
D. Subpoenas
shall be hand delivered unless otherwise agreed to.
E. In
order to compel attendance at a hearing, the subpoena shall be received by the
witness at least 72 hours prior to the time the witness is to appear. The
chairperson may waive this rule for good cause shown.
F. Employees
under subpoena shall be granted administrative leave as required by the
provisions of Subsection
D of 10.12.7.14 NMAC.
[10.12.12.15 NMAC - N, 7/1/2015]
10.12.12.16 SANCTIONS:
A. The
chairperson may impose sanctions upon the parties as necessary to serve the
cause of justice including, but not limited to the instances set forth below.
(1) When
a party fails to comply with an order, including an order for taking a
deposition, the production of evidence within the party's control, a request
for admission, and/or production of witnesses, the chairperson may:
(a) draw an inference in favor of the requesting party with
regard to the information sought;
(b) prohibit the party failing to comply with such order from
introducing evidence concerning, or otherwise relying upon testimony relating
to the information sought;
(c) permit the requesting party to introduce secondary evidence
concerning the information sought; or
(d) strike any part of the pleadings or other submissions of the
party failing to comply with such request.
(2) The
chairperson may refuse to consider any motion or other action which is not
filed in a timely fashion.
B. The
chairperson may issue an order to show cause why an
appeal should not be dismissed for failure to prosecute, or rule either for the
appellant or the appellee, so long as the merits of the case are not concerned.
If the order is uncontested, the chairperson may dismiss the appeal or rule for
the appellant. If the order is contested and the chairperson dismisses the
appeal or rules for the appellant, such decision is appealable to the deputy
chief within 14 calendar days of the order.
C. The
chief may prohibit a representative from appearing before its disciplinary
review board for a period of time set by the chief for good cause shown.
[10.12.12.16 NMAC - N, 7/1/2015]
10.12.12.17 NOTICE
OF HEARING: Notice of
hearing shall be made by certified mail with return receipt requested at least
14 calendar days prior to the hearing, unless otherwise agreed to by the
parties and the hearing officer.
[10.12.12.17 NMAC - N, 7/1/2015]
10.12.12.18 HEARINGS:
A. All
members of the board shall be present in person to conduct the hearing.
B. The hearing
shall be open to the public unless the parties agree that it shall be closed.
C. A
party may appear through a representative at any and all times during the
adjudication process, provided such representative has filed a written entry of
appearance.
D. The
chairperson may clear the room of witnesses not under examination, if either
party so requests, and of any person who is disruptive. The department is
entitled to have a person, in addition to its representative, in the hearing
room during the course of the hearing, even if the person will testify in the
hearing.
E. The
department shall present its evidence first.
F. Oral
evidence shall be taken only under oath or affirmation.
G. Each
party shall have the right to:
(1) make opening and closing statements;
(2) call and examine witnesses and introduce exhibits;
(3) cross-examine witnesses;
(4) impeach any witness;
(5) rebut any relevant evidence; and
(6) introduce evidence relevant to the choice of discipline if
it was raised as an issue in the pre-hearing order.
H. The
hearing shall be conducted in an orderly and informal manner without strict
adherence to the rules of evidence that govern proceedings in the courts of the
state of New Mexico. However, in order to support the board’s decisions, there
must be a residuum of legally competent evidence to support a verdict in a
court of law.
I. The
chairperson shall admit all evidence, including affidavits, if it is the sort
of evidence upon which responsible persons are accustomed to rely in the
conduct of serious affairs. The chairperson shall exclude immaterial,
irrelevant, or unduly cumulative testimony.
J. If scientific, technical, or other specialized knowledge
will assist the disciplinary review board to understand the evidence or to
determine a fact in issue, a witness qualified as an expert by knowledge,
skill, experience, training or education, may testify thereto in the form of an
opinion or otherwise. In the case of evidence relating to polygraph
examinations, the proponent must have followed all the provisions of rule 11-707 NMRA.
K. The
chairperson may take administrative notice of those matters in which courts of
this state may take judicial notice.
L. The
rules of privilege shall be effective to the extent that they are required to
be recognized in civil actions in the district courts of the state of New
Mexico.
M. The
chairperson shall admit evidence relevant only to those allegations against the
appellant included in both the notice of contemplated action and the notice of
final action or which are contested issues as set forth in the pre-hearing
order.
N. The
hearing shall be recorded by a video and/or audio-recording device under the
supervision of the chairperson. No other
recording of the hearing, by whatever means, shall be permitted without the
approval of the chairperson.
O. The
chief shall provide for and require that the chairperson to
(1) appoint
a signed language interpreter pursuant to the Signed Language Interpreting
Practices Act, Section 61-34-1 to 61-34-17 NMSA 1978 to appellants whose
hearing is so impaired that they cannot understand voice communication;
appellant must provide proof of disability; and
(2) appoint a language interpreter pursuant to the Court
Interpreter Act, Section 38-10-1to 38-10-8 NMSA 1978 for hearing participants
who do not understand English well enough to understand the proceedings.
[10.12.12.18 NMAC - N, 7/1/2015]
10.12.12.19 POST-HEARING
BRIEFS: The chairperson may require or
permit written closing arguments, post-hearing briefs and proposed findings of
fact and conclusions of law according to a scheduling order issued by the
chairperson. If case law is cited, a copy of the case shall be provided to the
hearing officer.
[10.12.12.19 NMAC - N, 7/1/2015]
10.12.12.20 BOARD’S
DECISION: The disciplinary review board shall
make a decision as soon as practicable upon conclusion of the hearing. The
chairperson shall provide a copy of the recommended decision to the parties by
certified mail with return receipt requested.
[10.12.12.20 NMAC - N, 7/1/2015]
10.12.12.21 EXCEPTIONS
TO A DECISION:
A. The
parties to a proceeding may file a request for reconsideration of a decision by
citing specific exceptions with supporting briefs to a disciplinary review
board’s decision according to a scheduling order issued by the chairperson.
B. Copies
of such exceptions and any briefs shall be served simultaneously on all
parties, and a statement of such service shall be furnished to the chairperson.
C. Exceptions
to a board’s decision shall cite the precise substantive or procedural issue to
which exceptions are taken.
D. Any
exception not specifically made shall be considered waived. Any exception that
fails to comply with the foregoing requirements may be disregarded. Any brief
in support of exceptions shall not contain matters not related to or within the
scope of the exceptions.
[10.12.12.21 NMAC - N, 7/1/2015]
10.12.12.22 DECISIONS
OF THE DISCIPLINARY REVIEW BOARD:
A. As
a general rule, the board shall only consider post-hearing briefs, and proposed
findings of fact and conclusions of law, the board’s decision, and exceptions
to the decision. Where circumstances warrant, the board may review all or a
portion of the record.
B. The
board shall not consider any additional evidence or affidavits not in the
record or pleadings not filed in accordance with the chairperson’s scheduling
order.
C. The
board may consider the record in executive session.
D. If
the board determines that the credibility of a witness is at issue, it shall
review at least as much of the record as is necessary to support its decision.
[10.12.12.22 NMAC - N, 7/1/2015]
10.12.12.23 REINSTATEMENT:
A. The
board may order the department to reinstate appellants with back pay and benefits.
Such appellants shall be reinstated to their former position, or to a position
of like status and pay, that they occupied at the time of the disciplinary
actions.
B. In
the event the board's order includes any back pay, the appellant shall provide
the department with a sworn statement of gross earnings, unemployment
compensation, and any other earnings, including but not limited to disability
benefits received by the appellant since the effective date of the disciplinary
action. The department shall be entitled to offset earnings, unemployment
compensation and any other earnings received during the period covered by the
back pay award against the back pay due. The chairperson shall retain
jurisdiction of the case for the purpose of resolving any disputes regarding
back pay.
[10.12.12.23 NMAC - N, 7/1/2015]
10.12.12.24 REPORT
OF DECISIONS: When the board renders a final decision in an
appeal, the board’s decision will be available to the public pursuant to the
Inspection of Public Records Act, Section 14-2-1 NMSA 1978 (as amended through
2003). Copies of the board’s final order
and the recommended decision shall be stored in the office, separate from
personnel files, and will be available to the public when provided to the
parties. The human resource director
will redact any privileged and confidential information pursuant to state and
federal law.
[10.12.12.24 NMAC - N, 7/1/2015]
HISTORY OF 10.12.12 NMAC [RESERVED]