TITLE 6 PRIMARY AND SECONDARY EDUCATION
CHAPTER 68 SCHOOL
PERSONNEL - DENIAL, SUSPENSION, AND REVOCATION OF LICENSE
PART 3 SUSPENSION,
REVOCATION OR OTHER DISCIPLINARY ACTION REGARDING A
LICENSE
HELD BY A LICENSED SCHOOL INDIVIDUAL
6.68.3.1 ISSUING
AGENCY: Public Education Department
[6.68.3.1 NMAC -
Rp, 6 NMAC 4.2.4.5.1, 11-30-05]
6.68.3.2 SCOPE:
This rule governs suspension, revocation or other disciplinary action
regarding a license held by a licensed school instructor, administrator or any
other of the individuals enumerated in Section 22-10A-3A NMSA 1978.
[6.68.3.2 NMAC - Rp, 6 NMAC
4.2.4.5.2, 11-30-05]
6.68.3.3 STATUTORY
AUTHORITY: Sections 22-2-1; 22-2-2; 22-10A-5, 31; and
61-1-1 et seq. NMSA 1978.
[6.68.3.3 NMAC -
Rp, 6 NMAC 4.2.4.5.3, 11-30-05]
6.68.3.4 DURATION:
Permanent
[6.68.3.4 NMAC -
Rp, 6 NMAC 4.2.4.5.4, 11-30-05]
6.68.3.5 EFFECTIVE
DATE: November 30, 2005, unless a later date is
specified at the end of a section.
[6.68.3.5 NMAC -
Rp, 6 NMAC 4.2.4.5.5, 11-30-05]
6.68.3.6 OBJECTIVE:
This regulation is adopted by the public education department
(hereinafter the "department") for the purpose of establishing
hearing procedures for suspension, revocation or other disciplinary actions regarding
a license or certificate issued by the department to a school instructor,
administrator or any other of the individuals enumerated in Section 22-10A-3A,
NMSA 1978.
[6.68.3.6 NMAC -
Rp, 6 NMAC 4.2.4.5.6, 11-30-05]
6.68.3.7 DEFINITIONS:
A. “Continuing education requirements” When used
in regards to teachers means meeting the high
objective uniform statewide standard of evaluation for the type and level of
licensure for which an applicant has applied as set forth in 6.69.4.11 NMAC and required under Subsection B of Section 22-10A-10
and Section 22-10A-11 NMSA 1978.
B. "Ex parte communications" means any oral, written or electronic communications between one
party (or his/her attorney) and the hearing officer, or as between one party
(or his/her attorney) and the secretary of education (hereinafter, the
“secretary”) that occur out of the presence and/or without the consent of the
opposing party (or his/her attorney).
Communications included in this definition, in addition to direct
communications, include indirect communications as where a party requests or
suggests to a non-party to contact the hearing officer or secretary on any
matter and for any reason related to a pending licensure case where charges
have been served on a licensed individual pursuant to this regulation. Ex parte communications also occur when
individuals sympathetic to one party make oral, written or electronic
communications to the hearing officer or the secretary that occur out of the
presence and/or without the consent of the opposing party (or his/her attorney)
on any matter and for any reason related to a pending licensure case where
charges have been served on a licensed individual pursuant to this rule.
C. "Licensee" means any of the individuals
enumerated in Section 22-10A-3A, NMSA 1978, who are required to hold a valid
license or certificate issued by the department in order to carry out their
duties in a public school in New Mexico, and to whom the department did issue a
certificate. A certificate and license
issued by the department are one and the same.
D. “Other disciplinary action” means any action other than a
suspension or revocation that the department may take against a licensee’s
license to practice the conduct authorized by that license as enumerated in
Subsections G through N of Section 61-1-3, NMSA 1978.
E. "Revocation of a license" means the indefinite
prohibition of the conduct authorized by the license.
F. "Suspension of a license" means the
prohibition, for a stated period of time, of the conduct authorized by the
license, which may or may not be subject to conditions that are reasonably
related to the grounds for suspension.
Suspension also means the allowance, for a stated period of time, of the
conduct authorized by the license subject to conditions that are reasonably
related to the grounds for suspension.
G. "Transcript of the hearing" means a verbatim
copy of the statements made by anyone during a hearing held under 6.68.3.11
NMAC and the Uniform Licensing Act, Section 61-1-1 et seq. NMSA 1978. A transcript may be either stenographically
recorded or tape recorded.
[6.68.3.7 NMAC -
Rp, 6 NMAC 4.2.4.5.7, 11-30-05]
6.68.3.8 COMMENCEMENT
OF PROCEEDINGS:
A. Director's inquiry:
The director of the educator ethics bureau or the director of the
professional licensure bureau (hereinafter the "ethics bureau" or the
“licensure bureau”) shall initiate appropriate inquiries whenever it appears
that ground(s) may exist as specified in Subsection B of 6.68.3.8 NMAC for
suspension, revocation or other disciplinary action against a license or certificate
held by a licensed school instructor, administrator or any other of the
individuals enumerated in Section 22-10A-3A, NMSA 1978. If an inquiry leads either director to
conclude that such ground(s) exist(s), said director shall recommend to the assistant secretary for educator quality that grounds exist for disciplinary action and that a
notice should be served on the licensee in accordance with Subsection D of
6.68.3.8 NMAC.
B. Grounds for suspension, revocation or other disciplinary
action against a license: subject to the
procedures set forth below, the department may suspend, revoke or take other
disciplinary action against a license or
certificate held by a licensed school instructor, administrator or any other of
the individuals enumerated in Section 22-10A-3A, NMSA 1978, for incompetency,
immorality or any other good and just cause.
"Other good and just cause" may include, but shall not be
limited to, any of the following:
(1) a material misstatement of fact by an
applicant for licensure in connection with the initial licensure application
process or the continuing licensure application process; or
(2) the denial of an application for licensure
or the suspension or revocation of an applicant's educational or other relevant
professional certificate(s) or license(s) by the certification or licensing
authorities of this or any other state or by a national licensing board or
bureau; or
(3) material noncompliance with any provision(s)
of department regulations prescribing the terms and conditions of employment
contracts for licensed school personnel in New Mexico at a time when the
licensee was subject to those regulations; or
(4) a willful violation of any department
regulation prescribing standards of conduct for licensed school personnel at a
time when the licensee was subject to such requirement; or
(5) a conviction of any felony or a
misdemeanor involving moral turpitude, subject to the further provisions of the
Criminal Offender Employment Act, Section 28-2-1, et seq., NMSA 1978; or
(6) a failure to comply with a judgment and
order for support pursuant to the Parental Responsibility Act, Section 40-5A-1,
et seq., NMSA 1978; or
(7) the intentional alteration of any college
transcripts or any license issued by the department in connection with any
private or public employment or in any dealings with the department;
(8)
knowingly permitting the continued employment of an individual without a
valid license or waiver from the department for a public school position
requiring a license by the School Personnel Act, Section 22-10A-3, NMSA 1978;
or
(9)
failing to meet level III-A competencies where a local superintendent
recommends to the secretary that the teacher’s level III-A license be suspended
in accordance with 6.69.4 NMAC.
C. Reporting requirements
(1) Every local school superintendent or the
person designated by the governing authorities of state agencies, private
schools or charter schools shall provide written notification to the director
of the ethics bureau upon acquiring knowledge of purported facts reasonably
believed by such notifying person to constitute grounds for suspension,
revocation or other disciplinary action against an educator or administrator
license. At a minimum, the written notification shall
include the name and address of the licensed individual, the personnel action
taken by a school district, if any, and a statement of reason for the
action. The following are not
justifications for failing to report this information to the director: whether or not the personnel action is final;
whether or not the personnel action was taken by a different school district;
whether or not the licensed person resigned from a different school district
pending investigation for misconduct; whether or not a person has been licensed
for three or more years; whether or not any adverse personnel action is/was
reversed. Written notification shall be
made to the director within 30 calendar days of the sooner of any adverse
personnel action or discovering purported facts reasonably believed to
constitute grounds for licensure revocation, suspension or other disciplinary
action. Failure of a superintendent to
provide such written notification under this subsection or Paragraph (2)
of Subsection C of 6.68.3.8 NMAC below shall not bar the department from
serving notice on a licensee, or revoking, suspending or taking other disciplinary action against his or her license.
(2) A school district superintendent or the
person designated by the governing authorities of state agencies, private
schools or charter schools shall report to the department any conviction of any
felony or a misdemeanor involving moral turpitude of a licensed school employee
that results in any type of action against the school employee in accordance
with Section 22-10A-5D, NMSA 1978.
D. Notice of contemplated action
(1) Service of notice: Upon
approval by the assistant secretary for educator quality the director of the ethics bureau or the licensure bureau
shall prepare and serve a written notice of contemplated action on the licensed
school instructor, administrator or any other of the individuals enumerated in
Section 22-10A-3A, NMSA 1978, no later than two years after the discovery of
the conduct that would be the basis of the contemplated action, except that the
time limitation shall be tolled by any civil or criminal litigation in which
the licensee is a party arising from substantially the same facts, conduct or
transaction that would be the basis for the department’s action. All notices or decisions required by this
rule may be served either personally or by certified mail, return receipt
requested, directed to the licensee at his/her last known address as shown by
the department’s records. If the notice
or decision is served personally, service shall be made in the same manner as
is provided for service by the rules of civil procedure for the district
courts. Where the notice or decision is
served by certified mail, it shall be deemed to have been served on the date
borne by the return receipt showing delivery or the last attempted delivery of
the notice or decision to the addressee or refusal of the addressee to accept
delivery.
(2) Contents:
The notice shall contain:
(a) the grounds believed to be sufficient for
the suspension, revocation or other disciplinary action against the licensee’s
license;
(b) instructions for requesting a hearing
before the department in accordance with 6.68.3.9 NMAC below.
(c) a statement that the department’s
contemplated action will be taken and shall become final unless the licensee
requests a hearing according to the procedure and within the time specified,
and that such action is not subject to judicial review;
(d) a statement calling the licensee’s
attention to his or her rights under this rule and the ULA, Section 61-1-8,
NMSA 1978, copies of which shall be provided with the written notice.
(3) Copies of notice: A copy of the notice shall be sent by the department to the local
superintendent of the district employing or seeking to employ the licensee, if
known, unless the licensee is the said superintendent, in which case the
president of the local school board shall be sent a copy of the notice
[6.68.3.8 NMAC -
Rp, 6 NMAC 4.2.4.5.8, 11-30-05]
6.68.3.9 PREHEARING
PROCEDURES:
A. Filing of request for hearing: A licensee shall initiate a request for
hearing by filing a timely, written request for hearing with the department, by
delivery of such request to the office of
the secretary of the department in Santa Fe, New
Mexico. Such request must be sent by
certified mail, return-receipt-requested within twenty (20) days after service of the notice on the licensee.
B. If a hearing is requested, the department, within twenty (20) days of receipt of the
request, shall notify the licensee of the time and place of the hearing, the
name, address and telephone number of the person who shall conduct the hearing
for the department and the statutes and regulations authorizing the department
to take the contemplated action, which hearing shall be held not more than
sixty (60) nor less than fifteen (15) days
from the date of service of said notice.
C. Failure to request a hearing: If the licensee does not make a timely
written request for a hearing, the department may take the action contemplated
in the notice and such action shall be final.
D. Appointment of a hearing officer
(1) All hearings may be conducted by a hearing
officer who shall be a duly licensed New Mexico attorney, excluding any
attorney then employed by the office of general counsel of the department. Upon receipt of the request for a hearing,
the director of the ethics bureau or the licensure bureau shall appoint the
hearing officer. Any hearing officer
appointed to serve on a case shall at all times be held to the same ethical
standards of impartiality that are set forth in Section 21-300(B) of the New Mexico code of judicial
conduct. The hearing officer may issue a
pre-hearing order limited to: setting
deadlines for the exchange of documents intended to be introduced; setting
deadlines for the exchange of a list of the name, address and telephone number
of each witness a party intends to call during the hearing; ordering the
licensee to have his/her attorney, if any, file within thirty (30) days a written notice of appearance with the hearing officer
with a copy to opposing party; and cautioning the parties of their need to
comply with Subsection G of 6.68.3.9 NMAC below. If either party requests a pre-hearing
conference with the hearing officer, such conference shall be scheduled by the
hearing officer and be held telephonically unless both parties agree to meet in
person.
(2) The hearing officer shall have the power:
(a) to have counsel to develop the case; to
administer oaths or affirmations to witnesses called to testify; to take
testimony; to examine witnesses; and to direct a continuance of any case;
hearing officers may also hold conferences before or during the hearing for the
settlement or simplification of the issues but such settlement or
simplification shall only be with the consent of the licensee;
(b) to hear pre-hearing motions: the hearing officer shall issue a written
order with a copy to both parties on any pre-hearing motion filed by a party;
(c) to subpoena, for purposes of discovery and
of the hearing, witnesses and relevant books, papers, documents and other
evidence in compliance with Rule 1-045A to D of the rules of civil procedure
and New Mexico civil form 4-505; a party may also issue such subpoenas with the
approval of the hearing officer;
(d) to impose any appropriate evidentiary
sanction against a party who fails to provide discovery or to comply with a
subpoena; such sanctions could include the striking of a witness or the
striking of documentary evidence;
(e) to take notice of judicially cognizable
facts as well as of general, technical or scientific facts within his/her
specialized knowledge so long as the licensee is notified either before or
during the hearing of the fact so noticed and its source, and is afforded an
opportunity to contest said fact; and
(f) to impose costs on the licensee upon
motion of the department.
E. Discovery:
(1) Rules of discovery provided in Rules 26
through 37 of the New Mexico rules of civil procedures shall apply, except that
all deadlines for responding to requests for admissions, interrogatories, and
requests for production of documents shall be within ten (10) days of the
delivery of the request. No such request
shall be made less than fifteen days before the hearing.
(2) Upon written request to another party, any
party is entitled to:
(a)
obtain the names and addresses of witnesses who will or may be called by
the other party to testify at the hearing; and
(b) inspect and copy any documents or items
which the other party will or may introduce in evidence at the hearing.
(3) Any opposition to any pre-hearing motion
filed by a party shall be filed within ten (10)
days of the service of that motion on the other
party.
(4) This rule does not authorize either party
to seek discovery sanctions or relief from a district court.
(5) Any party may take depositions after
service of notice in accordance with the rules of civil procedure for the
district courts. Depositions may be used
as in proceedings governed by those rules.
F. Pleadings:
Parties shall serve copies of all pleadings on each other and the
hearing officer, shall sign and date each pleading and shall include a signed
and dated certificate of service with their pleadings.
G. Ex parte communications:
Neither party nor his/her attorney shall engage in ex parte
communications with any hearing officer appointed to hear a case or with the
secretary on any matter regarding a pending case. Likewise, a hearing officer shall not engage
in ex parte communications with either party or his/her attorney on any case to
which that hearing officer has been appointed.
However, there may be occasions when brief ex parte communications are
warranted, for example, for scheduling, administrative purposes, or emergencies
that do not deal with substantive matters or issues on the merits. A summary of what was communicated shall be
promptly disclosed to the individual who did not participate in the ex parte
communication. The secretary shall not
engage in any ex parte communication with any party, attorney or interested
person on any matter or for any reason related to a pending licensure
suspension, revocation or other disciplinary action case where a notice of
contemplated action has been served on an licensee pursuant to this regulation.
[6.68.3.9 NMAC - Rp, 6 NMAC
4.2.4.5.9, 11-30-05]
6.68.3.10 RIGHTS
OF A LICENSEE:
A. A licensee shall have the right to be represented by
counsel or by a licensed member of his own profession or occupation, or both at no expense to the department; to present all relevant evidence by means of witnesses
and books papers, documents and other evidence; to examine all opposing
witnesses who appear on any matter relevant to the issues; and to have
subpoenas and subpoenas duces tecum issued as of right prior to the
commencement of the hearing to compel discovery and the attendance of witnesses
and the production of relevant books, papers, documents and other evidence upon
making written request therefore to the hearing officer. The issuance of such subpoenas after the
commencement of the hearing rests in the discretion of the hearing officer.
B. A licensee shall have the right to excuse the hearing
officer in accordance with ULA Section 61-1-7, NMSA 1978.
[6.68.3.10 NMAC - N, 11-30-05]
6.68.3.11 HEARING:
A. Purpose: The
purpose of the hearing shall be to determine whether sufficient grounds exist
for the suspension, revocation or other disciplinary action against the license
or certificate held by a licensed school instructor, administrator or any other
of the individuals enumerated in Section 22-10A-3A, NMSA 1978. The burden of proof shall be upon the
department to establish by a preponderance of the evidence that sufficient grounds
exist.
B. Venue of hearing:
The hearing shall be conducted in the county in which the licensee resides, or at the election
of the department, in any county in which the act or acts complained of
occurred. In any case, however, the
licensee and the department may agree that the hearing is to be held in some
other county.
C. Conduct of hearings
(1) The order of presentation of evidence
shall be as follows: The department
shall present evidence in an attempt to establish that sufficient grounds exist
for the suspension, revocation or other disciplinary action against the
licensee’s license. Thereafter, the
licensee may present evidence in defense.
The hearing officer may allow rebuttal evidence and/or closing
arguments.
(2) The rules of civil procedure and the rules
of evidence shall not apply to the hearing, except as specifically provided in
this regulation, but it shall be conducted so that both complaints and defenses
are amply and fairly presented. To this
end, the hearing officer shall permit each party to call and examine witnesses,
cross-examine witnesses and introduce exhibits.
Documentary evidence may be received in the form of copies or
excerpts. Evidence will be admitted
without regard to technical rules of evidence, but the hearing officer may
exclude any evidence, which is not relevant to the issues and may require
reasonable substantiation of statements or records where accuracy or truth is
in reasonable doubt. Any evidence may be
admitted that is of a kind commonly relied on by reasonably prudent people in
the conduct of serious affairs. The
hearing officer may in his or her discretion exclude incompetent, irrelevant,
immaterial or unduly repetitious evidence.
Rules of privilege shall be applicable to the same extent as in
proceedings before the courts of this state.
Parties or their attorneys may make timely objections to the
introduction of any evidence they view as inadmissible under this paragraph.
(3) A complete record shall be made of all
evidence received during the course of the hearing. The record shall be preserved by any
stenographic method in use in the district courts of this state, or in the
discretion of the department, by tape recording. The department shall observe any standards
pertaining to tape recordings established for the district courts. In any event, the department shall have one
copy of the transcript or tape recording of the hearing for the secretary’s
review in rendering a final decision.
Where judicial review is sought, the costs of required transcripts or
tape recordings shall be paid by the party seeking review.
(4) All witnesses shall swear or affirm that
their testimony will be truthful. A
person authorized to administer oaths shall swear each witness. The hearing officer may determine the
capacity of a witness to testify and may consider capacity in determining the
weight of the evidence. The hearing
officer may refuse to admit testimony from a proposed witness who is found
lacking capacity.
(5) The hearing officer may require
post-hearing briefs to be submitted by the parties. Such briefs shall not exceed twenty (20) pages in length,
double-spaced, exclusive of attachments, and shall be on paper eight and
one-half by eleven inches in length.
D. If a licensee fails to appear at a hearing and no
continuance has been granted, the hearing officer may hear the evidence of such
witnesses as may have appeared and proceed to consider and dispose of the case
on the basis of the evidence before him/her in the manner required under this
regulation. Where a licensee fails to
appear for a hearing or fails to request a hearing due to sickness, accident or
other good cause, such licensee may apply to the hearing officer where he
failed to appear, or to the department where he failed to request a hearing, to
reopen the proceeding, and upon finding such cause sufficient, the hearing
officer or the department, as the case may be, shall schedule a hearing and
give the licensee notice of such as required by this regulation. The hearing officer may require evidence to
prove licensee’s good cause in such cases.
E. Continuing jurisdiction
(1) Despite the expiration of a licensee’s
licensure, the department shall continue to have jurisdiction to hear a case
under this regulation where the individual whose licensure expired was served a
notice of contemplated action prior to
the expiration of the licensure.
(2)
The service of such notice upon a licensee
shall act to stay the expiration of licensure where that individual’s licensure
was scheduled to expire and would expire during a proceeding under this
regulation but for the stay of the expiration.
(3) Where
the secretary issues a final order in which the
licensee’s licensure is neither revoked nor outright suspended, then the
individual shall be permitted to renew his/her licensure as though it expired
on the original expiration date as long as he/she satisfies all other licensure
requirements for the level and type of license sought. The licensure bureau shall allow the
individual 60 days from the secretary’s final decision to file a renewal
application.
[6.68.3.11 NMAC -
Rp, 6 NMAC 4.2.4.5.10, 11-30-05]
6.68.3.12 THE
HEARING OFFICER’S REPORT TO THE SECRETARY:
A. The parties’ proposals:
The hearing officer shall afford the licensee and the department an
opportunity to file proposed findings of fact and conclusions of law by a deadline
specified by the hearing officer not to exceed thirty days from the closing of
the hearing. The hearing officer may
include in or exclude from his or her report to the secretary any portions of
the parties' proposed findings, conclusions or order as the hearing officer
deems are supported or not supported by the evidence presented at the
hearing. Moreover, the hearing officer
may revise the submitted proposed findings and conclusions and/or make other
findings and conclusions as he or she deems are supported by the evidence at
the hearing. No party shall submit
post-hearing briefs or proposed findings of fact and conclusions of law after
the deadline imposed unless leave to file late is granted by the hearing
officer for good cause shown.
B. Contents: After
the hearing officer’s deadline has elapsed, the hearing officer shall submit a
formal written report to the secretary consisting of the following labeled
paragraphs: statement of the case, legal
issues, proposed findings of fact, proposed conclusions of law, and order
proposed by the hearing officer. The
hearing officer shall limit his/her proposed order to: denial of the application, acceptance of the
application with a condition other than the payment of money, or acceptance of
the application.
C. In any disciplinary action of an individual's license(s)
brought under authority of the Parental Responsibility Act where the hearing
officer recommends disciplinary action against the licensee’s license, the
hearing officer shall limit his or her proposed findings, conclusions or order
to the issues of whether a certified list of obligors from the human services
department has been submitted indicating that individual as being in
non-compliance of a district court child support order, and whether the human
services department has provided to the department a certified statement that
the licensee is presently in compliance with
that order. The hearing officer and the
secretary shall defer to any district court child support order directed to the
department relative to a licensee’s educator license(s).
D. Time limits: The
hearing officer’s report along with the parties' briefs and proposed findings
of fact and conclusions of law and order, if any, shall be received by the
secretary through the office of general counsel, within thirty (30) days after the deadline
specified by the hearing officer for the parties’ submission of proposed
findings of fact and conclusions of law.
The secretary may extend this time upon request of the hearing officer
through the office of general counsel so long as the decision of the secretary
is rendered and signed within ninety (90) days
after the conclusion of the hearing. The
hearing officer shall serve a copy of the report
directly on the parties to the hearing, or upon their attorneys, if any, on the
same day the hearing officer serves the
secretary.
E. The hearing officer’s report shall be considered a
privileged communication between the department’s hearing officer and the secretary
not subject to public inspection until the secretary has reviewed the report
and rendered a final decision.
[6.68.3.12 NMAC -
N, 11-30-05]
6.68.3.13 DECISION
OF THE SECRETARY:
A. The secretary shall review the report of the hearing
officer together with any briefs or proposed findings/conclusions/orders timely
submitted by the parties. The secretary
shall render a final decision and order based on a preponderance of the
evidence. The secretary’s decision must
include a statement informing the licensee of his/her right to judicial review
and the time within which such review must be sought. The secretary shall either:
(1) adopt the hearing officer's proposed
findings of fact, conclusions of law and order; or
(2)
modify said findings of fact and conclusions of law and order and render
a decision; or
(3) reopen the case to receive additional
evidence or for other cause on request from the licensee or on the secretary’s
own motion; and where a request to reopen the case comes from the licensee, the
secretary shall serve upon the licensee within fifteen days after receipt of
said request, a decision to grant or refuse said request; and where the case is
reopened, notice of the hearing shall be served on the licensee within fifteen
days after service of the decision to reopen with the hearing being held within
forty-five days after the service of said notice and the decision from the
hearing being served on the licensee within thirty days after the hearing; or
(4) reject any action against the licensee’s
licensure on the grounds alleged and order the said license(s) to remain in
full force and effect. If the secretary
decides to hear additional evidence a transcript of the proceedings shall be
made by a qualified court reporter or a tape recording.
B. The secretary is not an appellate reviewer of the hearing
officer's proposed findings/conclusions/order.
Rather, the secretary is ultimately responsible for issuing a final
decision and order relative to possible disciplinary action against a
licensee’s educator licensure. If the
hearing officer recommends suspension of an individual’s license(s), the
secretary is at liberty to order any action provided in Section 6.68.3.13A
above, provided that any deviation from the hearing officer's proposed
findings/conclusions is supported by a preponderance of the evidence after
conducting an independent review of the transcript of the hearing. The same transcript review process would
apply to any other proposed findings/conclusions of the hearing officer from
which the secretary seeks to deviate.
C. At the request of the parties, the secretary may adopt
and incorporate into his or her decision and order all or any part of a written
settlement proposed by the parties, whether or not a case has gone to a
hearing. Any such settlement proposal
shall be duly signed and notarized and contain the detailed agreements of the
respective parties. Upon adoption and
incorporation by the secretary of all or any part of a written settlement, that
settlement or the incorporated portions shall become merged into the
secretary's decision and order as a final agency decision.
D. Time: The written
decision of the secretary must be rendered and signed within sixty (60) days after the
completion of the preparation of the record or submission of the hearing
officer’s report, whichever is later. In
any case, the decision must be rendered and signed within ninety (90) days after the hearing.
E. Service: A
written copy of the decision of the secretary shall be served on the licensee
personally in accordance with the rules of civil procedure for the district
courts or by certified mail, return-receipt-requested, directed to the licensee
at his or her last known address, or to his or her attorney, as shown by the
records of the department, within fifteen (15)
days after the decision is rendered and signed.
F. The decision of the secretary is a public record and may
be reported to the national association of state directors of teacher education
and certification’s clearinghouse and other organizations that request it.
[6.68.3.13 NMAC -
Rp, 6 NMAC 4.2.4.5.11, 11-30-05]
6.68.3.14 WAIVER:
A. Time limits: The
time limits specified in this rule may be waived by the licensee if done in
writing.
B. Hearing: No
hearing need be held by the department if the licensee waives in writing his or
her right to the hearing.
C. Voluntary surrender:
Prior to service of notice on a licensed individual, that individual may
voluntarily surrender his/her license(s) in a manner tantamount to revocation
or suspension of his/her license, provided that any such voluntary surrender is
accomplished by a writing where the individual has an opportunity to consult
with and retain an attorney. A voluntary
surrender may be achieved only with the
approval of the secretary, so long as the licensed
individual knowingly submits to the jurisdiction of the department and waives
in writing his or her right to a hearing and the other procedures set forth in
this rule. A voluntary surrender is not
subject to judicial review and its effect is binding on the parties to the
agreement accomplishing the surrender.
[6.68.3.14 NMAC -
Rp, 6 NMAC 4.2.4.5.12, 11-30-05]
6.68.3.15 APPEAL:
A. A final decision by the secretary after the hearing
officer has made his or her recommendations may be appealed to the district
court by an applicant within thirty days of the date of filing of the decision
in accordance with Section 39-3-1.1, NMSA 1978.
("Appeal of final decisions by agencies to district
court--application--scope of review--review of district court decisions")
B. The applicant may apply to the secretary for a stay of
his or her decision pending the outcome of the review of the decision in
district court.
[6.68.3.15 NMAC -
Rp, 6 NMAC 4.2.4.5.13, 11-30-05]
6.68.3.16 SEVERABILITY:
Any part of this rule found by adjudication before a competent tribunal
to be contrary to law shall be stricken without effect to the remainder.
[6.68.3.16 NMAC -
Rp, 6 NMAC 4.2.4.5.14, 11-30-05]
History of 6.68.3 NMAC:
Pre-NMAC History:
The material in this part was derived from that previously filed with
the State Records Center and Archives under:
SBE Regulation 78-6
amendment number 1, Governing Suspension or Revocation of a License Held by a
Licensed School Instructor or Administrator, filed June 29, 1988.
History of Repealed Material:
6.NMAC 4.2.4.5, Suspension or
Revocation of A License Held By A Licensed School Individual, Filed 06-01-98 -
Repealed effective 11-30-05