N.M. Admin. Code § 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 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.
Notes
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