N.M. Admin. Code § 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 is within the jurisdiction of the
commission, unless otherwise provided in Subsection D of this Section, 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
reply by a date set out in the request.
D. If the director determines that the
complaint, 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.
Notes
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