New Mexico Register / Volume XXX, Issue
23 / December 17, 2019
TITLE 1 GENERAL
GOVERNMENT ADMINISTRATION
CHAPTER 8 STATE
ETHICS COMMISSION
PART 3 ADMINISTRATIVE HEARINGS
1.8.3.1 ISSUING AGENCY: State
ethics commission (the commission), 800 Bradbury Dr. SE, Ste. 217, Albuquerque,
New Mexico 87106.
[1.8.3.1 NMAC-N, 1/1/2020]
1.8.3.2 SCOPE: This
part applies to all proceedings, cases, and hearings before the commission and
all parties that appear before the commission.
[1.8.3.2 NMAC-N, 1/1/2020]
1.8.3.3 STATUTORY AUTHORITY: Paragraphs 2
and 3 of Subsection A of Section 10-16G-5 NMSA 1978; Paragraph 5 of Subsection
B of Section 10-16G-6 NMSA 1978; Subsection H of Section 10-16G-7 NMSA 1978; Subsection
C of Section 10-16G-12 NMSA 1978; Section 1-19-34.8 of the Campaign Reporting
Act, Section 1-19-1 NMSA 1978; Section 2-11-8.3 of the Lobbyist Regulation Act,
Section 2-11-1 NMSA 1978; Section 2-15-8 NMSA 1978 ; Sections 10-16-11,
10-16-13, 10-16-14 and 10-16-18 of the Governmental Conduct Act, 10-16-1 NMSA
1978; Sections 10-16A-5, 10-16A-6, and 10-16A-8 of the Financial Disclosure
Act, 10-16A-1 NMSA 1978; Section 10-16B-5 of the Gift Act, Section 10-16B-1
NMSA 1978; and Section 13-1-196.1 of the Procurement Code, Section 13-1-28 NMSA
1978.
[1.8.3.3 NMAC-N, 1/1/2020]
1.8.3.4 DURATION: Permanent.
[1.8.3.4 NMAC-N, 1/1/2020]
1.8.3.5 EFFECTIVE DATE: January
1, 2020, unless a later date is cited at the end of a section, in which case
the later date is the effective date.
[1.8.3.5 NMAC-N, 1/1/2020]
1.8.3.6 OBJECTIVE: The
objective of this part is to provide general procedural rules for proceedings
before the state ethics commission.
[1.8.3.6 NMAC-N, 1/1/2020]
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. “Claim”
is a complainant’s allegation that a respondent violated a particular
provision of law.
F. “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.
G. “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.
H. “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.
I. “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.
J. “Party” and “Parties” means the named persons
in a proceeding before the commission or a hearing officer.
K. “Person”
means any individual or entity.
L. “Pleading”
means any written request, motion, or proposed action filed by a party with
the hearing officer or commission.
M. “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.
N. “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, 1/1/2020]
1.8.3.8 STANDING ORDERS: The
director may issue, or withdraw, standing orders addressing general practice
issues and filing protocols for the handling of cases before the commission or
its hearing officers. Such standing
orders will be displayed publicly at commission facilities, any commission
website, and in any applicable information provided with a notice of hearing. The parties appearing before the commission
or its hearing officers are expected to comply with standing orders.
[1.8.3.8 NMAC-N, 1/1/2020]
1.8.3.9 COMPLAINTS: FILING REQUIREMENTS, TIME LIMITATIONS,
NOTICE:
A. The commission shall
investigate allegations of violations of any statutes or constitutional
provisions over which the legislature gives it jurisdiction. Such complaints
may be filed against any public official, public employee, candidate, person subject to the Campaign Reporting Act, government
contractor, lobbyist or lobbyist’s employer.
(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
and forwarded by that agency 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 on
a form prescribed by the commission and provided at no cost to the complainant,
or in a substantially equivalent form;
(b) state the name and, to the extent
known to the complainant, the mailing address, email address, telephone number,
and public office or other position of the person against whom the complaint is
filed;
(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,
notarized and sworn to by the complainant, under penalty of false statement.
(3) 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 mailing address or email address of the person
against whom the complaint is filed, or is not signed, notarized and sworn to
by the complainant, under penalty of false statement, shall be dismissed
without prejudice, and the complainant will have the opportunity to refile the
complaint.
(4) 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 legal counsel representing any
party shall enter an appearance with the commission. 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, and 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
shall be 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 and this rule, excludes conduct
undertaken by an elected public official in furtherance of his or her campaign
for reelection.
(5) The commission may
proceed with any complaint, irrespective of whether the complaint is notarized,
that is forwarded to the commission by another state 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.
(6) 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.
(7) 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) 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 person 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 either dismissed or returned to the referring entity.
[1.8.3.9 NMAC-N, 1/1/2020]
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 the complaint, the director shall notify the respondent of the filing
of the complaint.
(1) The respondent may
file with the commission a responsive pleading within 15 days from the date of
receiving the director’s notification and serve the same upon the
complainant. Also, within 15 days from
the date of receiving the director’s notification, the respondent may file with
the commission, and serve upon the complainant, a motion to dismiss the
complaint for:
(a) lack of
subject matter jurisdiction;
(b) lack of
personal jurisdiction; or
(c) failure to
state a claim upon which relief may be granted.
(2) The complainant may
file a response to the respondent’s motion.
A response to a motion is due 15 calendar days from the date of the
filing of the motion.
B. Upon receiving a
complaint pursuant to Subparagraph (a) or (c) of Paragraph (1) of Subsection A
of 1.8.3.9 NMAC, and any responsive pleading, or motion and corresponding
response, the director shall, within 10 days, review the submissions to determine
whether the complaint is within the commission’s jurisdiction.
C. If the director
determines that a complaint lies wholly or in part within the jurisdiction of
the commission, the director shall forward the complaint to the general counsel
to initiate an investigation.
D. If the director
determines that the complaint is not wholly within the commission’s
jurisdiction, or is within the jurisdiction of another state or federal agency,
either in whole or in part, the director shall within ten days refer some or
all claims within the complaint to the appropriate agency, in accordance with 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, or Subsection D of Section
10-16-14 NMSA 1978.
E. If the director
determines that the complaint is neither within the jurisdiction of the
commission nor subject to referral to another agency under the terms of an agreement
entered into pursuant to Subsection E of Section 10-16G-9 NMSA 1978, the
commission shall dismiss the complaint.
F. 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 C through E 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.
G. 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, 1/1/2020]
1.8.3.11 GENERAL COUNSEL’S RESPONSIBILITY
TO INVESTIGATE COMPLAINTS; DISCOVERY AND SUBPOENAS; PROBABLE CAUSE
DETERMINATIONS AND CONSEQUENCES; SETTLEMENT AUTHORITY:
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. If the respondent
moves to dismiss a complaint, either in whole or in part, for failure to state
a claim for which relief can be granted, and if the director determines that
the commission has jurisdiction over the claim that is the subject of the
respondent’s motion to dismiss, the general counsel shall review the motion and
any corresponding response. After
reviewing the motion and any corresponding response, the general counsel shall
make a recommendation on the disposition of the motion. Based on the general counsel’s
recommendation, the hearing officer may either:
(1) grant the motion, either in whole or
in part, dismiss the complaint or part of the complaint that fails to state a
claim upon which relief can be granted, and notify the complainant and
respondent in writing of the decision and the reasons for dismissal; or
(2) deny the
motion and notify the parties in writing of the denial. In that event, the
general counsel shall initiate an investigation into whether the complaint is
supported by probable cause.
C. 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.
(1) The general
counsel, or the general counsel’s designee, may send to any party requests for
production of books, records, documents and other evidence reasonably related
to a complaint; requests for admission; and interrogatories, to be responded to
at a time therein specified.
(a) The
general counsel shall serve a copy of the request for production of books,
records, documents and other evidence and interrogatories on the respondent.
(b) If
a claim is made that documents responsive to a request made under this
subparagraph are privileged, the party asserting the claim of privilege must,
within 14 days after making the claim of privilege, provide the general counsel
with a written description of each document withheld that is sufficient to
permit the general counsel to assess the applicability of the asserted
privilege.
(2) The general
counsel, or the general counsel’s designee, may 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”. 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. 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) If a party refuses to respond to
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 the failure was substantially
justified or is harmless.
(3) If the general
counsel determines it is necessary, the director shall request the commission’s
authority to petition a district court:
(a) to issue a subpoena to obtain testimony of a person or the
production of books, records, documents or other evidence reasonably related to
an investigation;
(b) to order enforcement if the person subpoenaed neglects or
refuses to comply; or
(c) to resolve any assertion
of privilege.
D. Upon the
commission’s approval, the director, or the director’s designee, may petition
the designated district court judge, or another
district court judge if the designated judge is not available, for a subpoena pursuant
to the previous subsection. If a person neglects or refuses to comply with a
subpoena, the director or the director’s designee, upon the commission’s
approval, may apply to a district court for an order enforcing the subpoena and
compelling compliance.
E. If the general
counsel finds probable cause to support the allegations of the complaint, the
director shall promptly notify both the complainant and the respondent:
(1) of the specific claims
and allegations in the complaint that were the subject of the general counsel’s
investigation;
(2) of the finding of
probable cause as to specific claims; and
(3) 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.
F. If, after completing
the investigation, the general counsel determines that a complaint is not
supported by probable cause, 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.
G. 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.
H. 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.
[1.8.3.11 NMAC-N, 1/1/2020]
1.8.3.12 GENERAL COUNSEL’S INVESTIGATION REPORTS AND RECOMMENDATIONS TO
COMMISSION; DISPOSITION BY AGREEMENT; NOTICE TO PARTIES:
A. Upon completion of
the investigation of a complaint found to be supported by probable cause, the
general counsel shall report promptly the general counsel’s findings and
recommendations to the director.
(1) Upon the receipt of the general
counsel’s findings and recommendations, the director will 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.
(2) In
referring a complaint to the hearing officer, the director may consolidate the
complaint with any other pending complaint involving related questions of law
or fact; provided that consolidation will
not unduly delay resolution of an earlier-filed complaint, unduly prejudice any
complaint, or compromise the right of any complainant or respondent to confidentiality
under these rules.
B. 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.
C. 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.
[1.8.3.12 NMAC-N, 1/1/2020]
1.8.3.13 HEARING OFFICERS; 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.
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. 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 (3) of Subsection A of 1.8.3.9 NMAC.
G. The
hearing officer shall permit the general counsel to intervene upon request.
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. Any person may timely file an amicus brief, not to
exceed ten pages, with the director, for consideration by the hearing officer.
L. 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.
M. After the termination of the hearing,
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 any
law within the jurisdiction of the commission, the hearing officer, in a
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.
N. Clear
and convincing evidence is required to support a finding by a hearing officer
that a respondent’s conduct was fraudulent or willful.
O. 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 M of Section 1.8.3.13 NMAC.
P. 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.
Q. Either
party may request copies of exhibits, documents, records in the administrative
file, or a copy of the audio recording of the proceeding 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.
[1.8.3.13 NMAC-N, 1/1/2020]
1.8.3.14 APPEALS:
A. Except
as provided by Subsections E and F of 1.8.3.14 NMAC, 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.
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. If a hearing officer issues a
decision granting a respondent’s motion to dismiss for failure to state a claim
and dismisses a complaint or part of a complaint pursuant to Paragraph (1) of
Subsection B of 1.8.3.11 NMAC, then the complainant may appeal the hearing
officer’s decision to the commission as provided in these rules. If, however, a hearing officer issues a
decision denying a respondent’s motion to dismiss for failure to state a claim,
then the respondent has no right to an interlocutory appeal of that decision to
the commission, but may appeal any final decision of the hearing officer to the
commission.
G. If a hearing officer dismisses a
complaint, pursuant to Subsection G of 1.8.3.11, following the general
counsel’s determination that the complaint is not supported by probable cause,
then the complainant has no right to an appeal of that dismissal to the
commission.
H. 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.
[1.8.3.14 NMAC-N, 1/1/2020]
1.8.3.15 OPEN RECORDS AND CONFIDENTIALITY:
A. Thirty days after
the director provides notice pursuant to Subsection F of 1.8.3.11 NMAC to the
respondent of the allegations of a complaint, the general counsel’s finding of
probable cause, and the setting of the public hearing:
(1) the director shall make
public the specific allegations of the complaint, the notification to the
respondent, and any response filed by the respondent, and any related records, provided that:
(2) prior to the
publication of any commission records pursuant to the preceding subparagraph,
any proceedings in district court initiated by the commission to obtain
subpoenas shall be sealed, and shall remain so until such time as the
commission notifies the court that the commission has made the complaint public
or the parties enter into an approved settlement agreement.
B. If a complaint is
dismissed because the general counsel has found it to be frivolous or
unsubstantiated, as provided in Subsection E of Section 10-16G-10 NMSA 1978, the
commission shall not release to the public the complaint, the reason for its
dismissal, or any related records. Nothing in this subsection shall prevent the
making public of any document by a complainant or respondent to the proceeding.
C. Notwithstanding any
other requirement in these rules or the law requiring notification to the complainant
or respondent of commission actions on a complaint, the director may delay
notifying parties or releasing to the public the complaint and related
information if the director deems it necessary to protect the integrity of a
criminal investigation.
(1) The director shall,
within 10 days of making the decision to delay release of a complaint pursuant
to this subsection, present to the commission the records and information to be
withheld and the reasons for delaying their release.
(2) The commission may,
by a majority vote pursuant to Subsection H of Section 10-16G-10 NMSA 1978,
confirm the director’s decision in a meeting closed pursuant to the
requirements of the Open Meetings Act, Section 10-15-1 NMSA 1978, and the
commission’s open meetings resolution.
(3) The commission shall
document in writing with reasonable specificity its decision on whether to
confirm the director’s decision, the reasons for its decision, and the time
after which the release of documents must occur.
D. Except as otherwise
provided by Section 10-16G-13 NMSA 1978, or these rules, all complaints, pleadings,
evidence, findings of ethical violations, terms of settlements approved by the
commission and other documents within the custody and control of the commission
shall be public records subject to public inspection pursuant to the Inspection
of Public Records Act, Section 14-2-1 NMSA 1978.
E. Notwithstanding the previous
subsection, the commission, its staff and contractors shall not reveal any
information that is:
(1) protected pursuant to any
privilege in law or judicial rule, or
(2) otherwise made confidential
by law.
[1.8.3.15 NMAC-N, 1/1/2020]
History of 1.8.3 NMAC:
[RESERVED]