TITLE 22: COURTS
CHAPTER 600: ADMINISTRATIVE
HEARINGS OFFICE
PART 2: CODE
OF CONDUCT FOR ADMINISTRATIVE HEARINGS
22.600.2.1 ISSUING
AGENCY: Administrative Hearings Office, Wendell Chino
Building, 1220 South St. Francis Drive, P.O. Box 6400,
Santa Fe, NM 87502.
[22.600.2.1 NMAC -
N, 2/1/2018]
22.600.2.2 SCOPE:
This part applies to all proceedings before the administrative hearings office
and all parties that appear before the administrative hearings office, unless a
more specific statutory or regulatory provision applies to the specific hearing
type being conducted.
[22.600.2.2 NMAC -
N, 2/1/2018]
22.600.2.3 STATUTORY
AUTHORITY: Paragraph (1) of Subsection A of 7-1.B-5 NMSA
1978.
[22.600.2.3 NMAC -
N, 2/1/2018]
22.600.2.4 DURATION:
Permanent.
[22.600.2.4 NMAC -
N, 2/1/2018]
22.600.2.5 EFFECTIVE
DATE: February 1, 2018, unless a later date is
cited at the end of a section, in which case the later date is the effective
date.
[22.600.2.5 NMAC -
N, 2/1/2018]
22.600.2.6 OBJECTIVE: The
objective of this part is to establish a code of conduct for the administrative
hearings office hearing officers and those appearing before the administrative hearings
office.
[22.600.2.6 NMAC -
N, 2/1/2018]
22.600.2.7 DEFINITIONS: The
following terms apply to:
A. “Administrative hearings
office” is the agency established under Section 7-1B-1 NMSA 1978.
B. “Chief hearing officer”
is the appointed head of the administrative hearings office under the
Administrative Hearings Office Act, Section 7-1B-3 NMSA 1978, or the chief
hearing officer’s designee during the absence of the chief hearing officer, or
the acting, interim chief hearing officer pending appointment of that position.
C. “Hearing officer”
is the attorney assigned by the chief hearing officer or designee of the chief hearing
officer to serve as a neutral decision maker in any adjudicatory proceeding
before the administrative hearings office.
The person assigned as hearing officer must be licensed to practice law
in New Mexico or eligible for temporary licensure to practice in New Mexico as determined
by the New Mexico supreme court. The hearing officer may be a classified
employee in the state personnel system with the administrative hearings office,
either as an attorney or administrative law judge, may be under contract with
the administrative hearings office as a contract attorney, administrative law
judge, or judge, or may be an attorney, administrative law judge, or judge serving
in a voluntary capacity for the administrative hearings office.
D. “Party” shall
include the real parties of interest and their representatives, including bona
fide employees, attorneys, certified public accountants, enrolled agents,
agency staff, agency attorneys, or other representatives authorized by the
Administrative Hearings Office Act to appear on behalf of a party.
E. “Third degree of
relationship” include the following persons, by
blood or marriage: great-grandparent, grandparent, parent, uncle, aunt,
brother, sister, child, grandchild, great-grandchild, nephew, and niece.
[22.600.2.7 NMAC -
N, 1/1/2018]
22.600.2.8 APPLICABILITY
OF THESE RULES: These rules apply to hearing officers
conducting and adjudicating administrative hearings for the administrative hearings
office, and parties appearing before the administrative hearings office.
[22.600.2.8 NMAC -
N, 2/1/2018]
22.600.2.9 HEARING
OFFICERS SHALL PROMOTE PUBLIC CONFIDENCE IN THE INTEGRITY AND FAIRNESS OF THE HEARING
PROCESS: A hearing officer shall act in a manner that
promotes public confidence in the fairness, integrity, and impartiality of the
hearing process. A hearing officer shall
not abuse the public trust granted to the hearing officer in adjudicating
hearings to advance the personal, professional, or economic interest of the
hearing officer, family, friends, or current or former business associates nor
shall the hearing officer knowingly permit others to do the same on his or her
behalf.
[22.600.2.9 NMAC -
N, 2/1/2018]
22.600.2.10 AVOIDING
IMPROPRIETY AND THE APPEARANCE THEREOF: A hearing
officer shall avoid impropriety. A
hearing officer shall also avoid the reasonable appearance of impropriety. A reasonable appearance of impropriety occurs
whenever a reasonable person would have serious doubts about whether the
hearing officer could be fair given the circumstances. If the hearing officer, initially unaware of
any potential issue, becomes aware of any potential appearance of impropriety
during the course of the hearing, the hearing officer shall promptly disclose on
the record the potential appearance of impropriety to the parties, allow the
parties to appropriately respond or object, and then make a formal
determination as to whether the hearing officer can continue to proceed in the hearing
without violating this provision. The
hearing officer may consult with other hearings officers and the chief hearing
officer about any potential appearance of impropriety issues as part of the
process of determining whether the assigned hearing officer can continuing
presiding over the matter. The rule of
necessity may require a hearing officer to proceed in the matter if there is no
other hearing officer available to conduct the matter before expiration of a
mandatory, jurisdictional deadline.
[22.600.2.10 NMAC
- N, 2/1/2018]
22.600.2.11 HEARING
OFFICER COMPETENCY: Hearing officers should perform their duties
diligently and competently. Hearing
officers should know, and have the capacity to apply the applicable substantive
and procedural law at issue in the hearing, including standards governing due
process and evidence. Hearing officers
should have the capacity to properly weigh evidence and assess the credibility
of witnesses whether present in person for the hearing or appearing remotely
via telephone, videoconference, or other equivalent electronic means. Hearing officers shall possess the writing
skills necessary to craft legally competent and readable documents, including
citation to legal authority and hearing record as necessary or appropriate. Hearing officers should be skilled in
conducting hearings efficiently, fairly, developing an appropriate record, and
maintaining good order during the proceeding. Hearing officer should regularly participate
in, attend, or conduct continuing education and appropriate legal community
outreach/service to improve their competency, to stay current in the knowledge
of the law and the hearing process, and to remain engaged in the broader legal
community.
[22.600.2.11 NMAC
- N, 2/1/2018]
22.600.2.12 INDEPENDENCE: In
deciding matters, a hearing officer shall be faithful to their reasonable
understanding of controlling law. A
hearing officer shall not be swayed by partisan interests, public clamor, or
fear of criticism. Hearing officers shall
not permit family, social, political, financial, or other personal interests or
relationships to influence their conduct or judgment. A hearing officer shall not convey nor permit
others to convey the impression that any person or organization is in a
position to improperly influence the hearing officer. This provision is not intended to prevent a
hearing officer from consulting and discussing a pending matter with other
hearing officers or a supervising hearing officer within the administrative hearings
office.
[22.600.2.12 NMAC
- N, 2/1/2018]
22.600.2.13 ORDER
AND DECORUM OF PROCEEEDING:
A. A
hearing officer should require order and decorum in official proceedings. Hearing officers should promote the dignity
and decorum of the administrative hearing process. Hearing officers should exercise their lawful
authority in any proceeding to ensure that all persons involved conduct themselves
with proper decorum.
B. Attorneys,
certified public accountants, enrolled agents and other authorized
representatives appearing before the hearing officer should treat the tribunal
with appropriate professionalism, dignity and respect, including showing candor
to the tribunal, in line with their own obligations for professional and
ethical conduct. Failure to do so may result in reporting the representative to
the appropriate governing body and other appropriate remedies needed to ensure
an orderly hearing process, including in extreme circumstances, excluding the
representative from further representation.
[22.600.2.13 NMAC
- N, 2/1/2018]
22.600.2.14 HEARINGS
TO BE CONDUCTED WITH IMPARTIALITY: Hearing officers should always
strive to conduct proceedings before them in an impartial, fair, and respectful
manner. This requires a hearing officer
to treat all persons involved in the proceeding, including the appealing or
petitioning parties and their representatives, the agency, agency staff or
representatives, witnesses, interpreters, interveners, observers, and any other
person who appears before the hearing officer with appropriate respect. It is not a violation of this provision for hearing
officers: to reasonably ask questions during the proceeding; to reasonably state
what they believe the legal analysis applicable to the case requires in order
to ensure an orderly, relevant, and efficient presentation of the case; to reasonably
press a party on their legal position during the course of the proceeding in
order to test the contours of an issue; to reasonably encourage resolution or
narrowing of the issues in a case; and to take other reasonable actions
necessary to ensure the conduct of an orderly hearing, or gain control of a
hearing if a party violates the decorum of the proceeding, such as but not
limited to reprimanding a participant for continuing inappropriate,
disrespectful, or disruptive conduct.
[22.600.2.14 NMAC
- N, 2/1/2018]
22.600.2.15 HEARINGS
TO BE CONDUCTED WITHOUT BIAS, PREJUDICE, OR HARASSMENT: A
hearing officer shall not, by words or conduct, show any bias or prejudice, or
harass any party or person present at a hearing, based on race, religion,
color, national origin, ethnicity, ancestry, sex, sexual orientation, gender
identity, marital status, socioeconomic status, political affiliation, age,
physical or mental disability or serious medical condition. To the extent reasonably possible, a hearing
officer shall not permit or allow others involved in the hearing process,
including the hearing officer’s staff or representatives of the parties, to
engage in such bias, prejudice, or harassment. A hearing officer and others may make
legitimate and respectful reference to, and discuss, the listed factors when
they are relevant to an issue in the proceeding.
[22.600.2.15 NMAC
- N, 2/1/2018]
22.600.2.16 EX
PARTE COMMUNICATIONS:
A. A hearing
officer on an assigned case may not engage in any prohibited ex parte
communications about the substantive issues with either party on any matter
before the administrative hearings office. A prohibited 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 a prohibited 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.
B. Where
circumstances require it, ex parte communications for procedural,
administrative, or emergency purposes that does not address the substantive
matters or issues on the merits are permitted if the hearing officer reasonably
believes that no party will gain an advantage as a result of the non-substantive
ex parte communication and the hearing officer makes provisions to promptly
notify all parties of the substance of the ex parte communication.
C. As part of the
deliberative process, a hearing officer may consult with other hearing
officers, except those who have previously been disqualified from the matter,
and support personnel of the administrative hearings office about a pending
matter. Such communication does not
amount to a prohibited ex parte communication.
D. In the event a
hearing officer receives an unsolicited ex parte communication, such as but not
limited to the receipt of an email or a facsimile, the hearing officer
receiving the unsolicited communication shall promptly forward a copy of the
communication to the opposing party and admonish the sending party to comply
with the ex parte communication prohibition in all future communications. An unsolicited ex parte communication does
not constitute a prohibited ex parte communication unless the assigned hearing
officer deems that the communication caused a genuine advantage to the
non-complying, submitting party.
E. The chief
hearing officer or designated staff, may make inquiries about the status of a
scheduled case or cases, or the conduct of a case or cases that have already
occurred, with either or both parties as part of the management of the docket, staff,
and state resources. This communication
does not amount to prohibited ex parte communication.
F. With consent of
the parties, the hearing officer may confer separately with the parties or
their representatives in an effort to mediate or settle pending matters. With consent, such communication does not
amount to a prohibited ex parte communication.
G. Absent providing
administrative notice to the parties with an opportunity for the parties to
respond or object, or receiving prior consent from the parties to do so, a hearing
officer shall not investigate facts that are reasonably in dispute in a matter
independently of what has been presented on the record. This does not preclude a hearing officer from
researching the applicable law relevant to the facts presented regardless of
whether such legal authority was cited by either party. Nor does it preclude the hearing officer from
taking administrative notice of facts that cannot reasonably be disputed.
H. A hearing
officer may engage in ex parte communications when expressly authorized by law
to do so.
I. So long as no
confidential or privileged information about the case or the identities of the parties
is disclosed, a hearing officer may consult with other hearing officers, other
staff, ethics advisory committees, outside counsel, judges who will not serve
in an appellate capacity in the matter, mentors, or other legal experts
concerning the hearing officer’s obligations and compliance with provisions of
this code without disclosing such communication to any person or party.
[22.600.2.16 NMAC
- N, 2/1/2018]
22.600.2.17 PUBLIC
STATEMENTS ON PENDING MATTERS AND HEARING OFFICER INVOLVEMENT IN PUBLIC
EVENTS/ORGANIZATIONS:
A. A hearing
officer shall not make any public statement about a pending matter that might
reasonably be expected to affect the outcome or impair the fairness of proceedings
in a pending matter, or make pledges, promises or commitments that are
inconsistent with the impartial performance of the hearing officer’s
adjudicatory duties.
B. A hearing
officer shall not publicly comment on any case in which the hearing officer
presided over other than, upon inquiry, refer to any publically available final
decision and order, if any, issued in the matter.
C. A hearing
officer may make public statements to explain tribunal procedures and confirm
basic status and scheduling details for a hearing that is statutorily open to
the public.
D. While a hearing
officer may not publically advocate for or against the formulation of any
particular substantive tax policy or statute, a hearing officer may provide
general information in a public forum, including before the Legislature, about
the policies, practices, procedures of the office, and the possible effects of
proposed change of statutes on the efficiency of the hearing process, hearing
procedures, and the resource needs of the office.
E. A hearing
officer is encouraged to participate in legal forums, trainings, educational or
academic settings, bar association, judicial association, or other public
community events where the hearing officer’s knowledge of the issues, law, and
procedures may be useful to the legal system, the public understanding about
the hearing process, and the administration of justice, or where other
participants at the event may provide similar insight to the hearing officer.
F. Consistent with
other controlling state statutes, rules, regulations, and policies, and with
consent of the chief hearing officer, a hearing officer may voluntarily serve
as a member, officer, or director of an organization or governmental agency
devoted to the improvement of the law, the legal system, or the administration
of justice, so long as such service would not create an appearance of
impropriety, a potential conflict of interest, or otherwise reasonably interfere
with the hearing officer’s ability to fairly, impartially, and efficiently
adjudicate cases in the subject matters that regularly are heard before the administrative
hearings office.
[22.600.2.17 NMAC
- N, 2/1/2018]
22.600.2.18 PERSONAL
CONDUCT:
A. Hearing officers
shall not participate in outside activities that will interfere with the
hearing officer’s official duties or participate in activities that will lead
to frequent disqualification of the hearing officer. The hearing officer should refrain from
conduct and not participate in activities, or belong to organizations,
that would appear to a reasonable person to undermine the hearing
officer’s independence, integrity, impartiality, or judgment. A hearing officer should not hold membership
in any organization that practices invidious discrimination on the basis of
race, religion, color, national origin, ethnicity, ancestry, sex, sexual
orientation, gender, gender identity, marital status, socioeconomic status,
political affiliation, age, physical or mental disability, or serious medical
condition.
B. The hearing
officer must be knowledgeable about and comply with all statutes, ordinances,
regulations, and policies governing conduct of public employees.
C. A hearing
officer shall not accept any gifts, loans, bequests, benefits, donations, or
things of value if acceptance is prohibited by law or would appear to a
reasonable person to undermine the hearing officer’s integrity or impartiality
in performance of hearing officer duties, or if the source is a party or other
person, including a lawyer, who has or is likely to come before the hearing
officer.
D. A hearing
officer shall not request or receive an honorarium or payment for a speech,
presentation, training, educational activity, or other event related to the
hearing officer’s duties except for reasonable reimbursement for meals,
lodging, and actual travel expenses incurred for such activity.
[22.600.2.18 NMAC
- N, 2/1/2018]
22.600.2.19 CONFIDENTIALITY: A
hearing officer shall not intentionally disclose or use nonpublic information
acquired by virtue of his or her position for any purpose unrelated to the
hearing officer’s duties or in violation of the law. A hearing officer shall be knowledgeable about
and shall comply with all laws and regulations governing confidentiality of
information before the agency and tribunal.
[22.600.2.19 NMAC
- N, 2/1/2018]
22.600.2.20 COMPLIANCE
WITH ETHICAL RULES: A hearing officer shall strive to comply with
these rules and, to the extent they are not in direct conflict with these rules
or other statutory authority applicable to the administrative hearings office, any
other relevant administrative rules, codes of conduct, or policies regarding
ethics, professionalism, or conduct. Hearing
officers should work to ensure that their own staff and others appearing in a
proceeding before them also comply with these rules and other applicable rules
governing conduct. Hearing officers have
a duty to report a clear violation of a known ethical, professional or conduct
standard they observe to the appropriate authority, including the governing
bodies that regulate attorneys, certified public accountants, and enrolled
agents that appear at hearings as representatives.
[22.600.2.20 NMAC
- N, 2/1/2018]
22.600.2.21 DUTY
TO HEAR ASSIGNED CASES AND RECUSALS:
A. A hearing
officer has a professional responsibility to hear and decide cases assigned to
them, including difficult, time consuming, controversial, or high profile
matters, and adjudicate all assigned cases unless there are clear grounds under
this code or other applicable standards or law requiring disqualification.
B. A hearing
officer shall recuse himself or herself in any proceeding in which the hearing
officer’s impartiality might reasonably be questioned, including:
(1) The
hearing officer has a personal preference for, or bias or prejudice against a
party or a party’s lawyer, or has direct personal knowledge of facts that are
in dispute in the proceeding.
(2) The
hearing officer knows that the hearing officer, the hearing officer’s spouse or
domestic partner, or person within the third degree of relationship to either
of them, or the spouse or domestic partner of such a person, or a member of the
hearing officer’s staff is:
(a) a party to the proceeding, or an officer, director, general
partner, managing member, or trustee of a party;
(b) acting as a lawyer in the proceeding;
(c) a person has more than a de minimis
interest that could substantially affected by the proceeding; or
(d) likely to be a material witness in the proceeding.
(3) The
hearing officer knows that he or she, individually or as fiduciary, or the
hearing officer’s spouse, domestic partner, parent, or child, or any other
person residing in the hearing officer’s household, has more than a de minimis economic interest in the subject matter in
controversy or is a party to the proceeding. Because tax controversies can involve
companies and business with a substantial public consumer, retail, or general
services presence in commerce, the mere fact that the assigned hearing officer,
or their immediate family residing in their household, may be an occasional
customer of a company or consumer of a company’s products is not necessarily
grounds for recusal unless the hearing officer has more than a de minimis economic interest beyond being an average consumer,
shopper, or user of the goods and services of the company or the circumstances
are sufficient to raise reasonable questions about the hearing officer’s
impartiality.
C. In consultation
with the chief hearing officer about the reasons and necessity for recusal, a
hearing officer may recuse himself or herself from the case through notice of
recusal, or through the chief hearing officer’s issuance of a notice of
reassignment, without further explanation to the parties in the proceeding
about the basis of the recusal. The recused
hearing officer shall play no further role in the proceeding and reasonable
steps should be taken to exclude the recused hearing officer from any further
contact, review, or substantive discussions about the proceeding. A hearing officer’s own decision to recuse himself
or herself from a proceeding should not be construed as an admission of a
conflict of interest, misconduct, impropriety, violation of this code or other
relevant ethical or professional code, or as an admission that the hearing
officer cannot be impartial in a particular matter.
D. A
hearing officer may disclose on the record the basis of the hearing officer’s
prospective recusal and may ask the parties and their lawyers to consider
whether to waive the potential issue necessitating the recusal. If, following this disclosure, the parties and
lawyers agree for the record that the hearing officer should not be recused, the hearing officer may continue to participate in
the matter.
E. The rule of
necessity may require a hearing officer to proceed in a case where they
otherwise might wish to recuse themselves if, after reasonable efforts to
secure a continuance or reassignment of the matter to another hearing officer,
there are no other competent hearing officers available to timely hear the
matter before expiration of a mandatory jurisdictional deadline. If the hearing officer is relying on the rule
of necessity to proceed, that determination must be disclosed on the record.
[22.600.2.21 NMAC
- N, 2/1/2018]
22.600.2.22 COMPLAINT
PROCEDURE AND DISQUALIFICATION:
A. A party may make
an informal, verbal complaint of a violation of this code with the chief
hearing officer. Such complaints will be investigated internally and informally
by the chief hearing officer as part of the management of personnel of the
office. If the complaint is justified,
the chief hearing officer may implement informal actions designed to educate or
correct the hearings officer’s conduct, mitigate the violation, or take other justified
actions under the circumstances.
B. Whenever
any party believes the hearing officer for any reason should be formally disqualified
because there is a substantial doubt as to whether the hearing officer can
conduct the matter fairly, such party may file with the chief hearing officer a
formal written motion for disqualification of the assigned hearing officer, along
with supporting affidavits or exhibits setting forth the alleged grounds for
disqualification. A copy of the motion
shall be served on the opposing party and on the hearing officer whose disqualification
is sought.
(1) Upon
receipt of a formal motion for disqualification, the chief hearing officer may:
(a) summarily
dismiss the motion if it is clear that the complaint fails to state grounds
that raise a reasonable doubt as to the hearing officer’s ability to provide a
fair and impartial hearing, is frivolous in that it either has the primary
purpose of seeking to delay the proceeding or is an attempt to relitigate an unfavorable ruling that is better addressed
as part of the traditional appellate process; or
(b) conduct further investigation either directly or through another
agency or entity as circumstances justify; or
(c) in order to ensure an efficient hearing process in light of a
mandatory jurisdictional deadline, reassign the case to another hearing officer
pending further investigation. Such
reassignment for efficiency of hearing process pending further investigation
does not constitute a finding that the motion for disqualification has any
validity, only a recognition of the practical
jurisdictional deadlines applicable in a matter.
(2) If
further investigation is merited, the hearing officer shall have 10 days from
service of the motion to accede or to reply to the allegations. The noncomplaining other party may also choose
to file a response within 10 days. If
the hearing officer does not recuse himself or herself within that time, the chief
hearing officer shall promptly review the complaint, the responses, and the
results of any investigation to determine whether or not the hearing officer
shall be disqualified. The chief hearing
officer’s determination shall be reduced to writing in the form of a letter or
order and shall be included in the record of the proceeding. Subject to appellate review, the chief hearing
officer's decision in response to a formal motion seeking disqualification shall
be final.
C. If the hearing
officer is disqualified, the chief hearing officer shall designate another
person to act as hearing officer in the matter.
D. As a result of
the motion for disqualification and any related investigation, the chief
hearing officer may take other appropriate internal corrective or disciplinary
personnel actions consistent with the State Personnel Act. Any such additional personnel action is
confidential in accord with the controlling provisions of the State Personnel
Act.
E. The complaining
party’s remedies for violations of this code are limited to disqualification of
the hearing officer from the particular proceeding before the administrative
hearings office. Nothing in this section
creates an independent cause of action by either party outside of this complaint
procedure described herein, or an independent basis to seek discipline under
either the code of judicial conduct or the rules of professional conduct.
[22.600.2.22 NMAC
- N, 2/1/2018]
HISTORY
of 22.600.2 NMAC: [RESERVED]