N.M. Admin. Code § 10.12.12.18

Current through Register Vol. 35, No. 21, November 5, 2024

Section 10.12.12.18 - HEARINGS

A.All members of the board shall be present in person to conduct the hearing.

B. The hearing shall be open to the public unless the parties agree that it shall be closed.

C. A party may appear through a representative at any and all times during the adjudication process, provided such representative has fled a written entry of appearance.

D. The chairperson may clear the room of witnesses not under examination, if either party so requests, and of any person who is disruptive. The department is entitled to have a person, in addition to its representative, in the hearing room during the course of the hearing, even if the person will testify in the hearing.

E. The department shall present its evidence first.

F. Oral evidence shall be taken only under oath or affirmation.

G. Each party shall have the right to:

(1) make opening and closing statements;

(2) call and examine witnesses and introduce exhibits;

(3) cross-examine witnesses;

(4) impeach any witness;

(5) rebut any relevant evidence; and

(6) introduce evidence relevant to the choice of discipline if it was raised as an issue in the pre-hearing order.

H.The hearing shall be conducted in an orderly and informal manner without strict adherence to the rules of evidence that govern proceedings in the courts of the state of New Mexico. However, in order to support the board's decisions, there must be a residuum of legally competent evidence to support a verdict in a court of law.

I.The chairperson shall admit all evidence, including affidavits, if it is the sort of evidence upon which responsible persons are accustomed to rely in the conduct of serious affairs. The chairperson shall exclude immaterial, irrelevant, or unduly cumulative testimony.

J.If scientific, technical, or other specialized knowledge will assist the disciplinary review board to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training or education, may testify thereto in the form of an opinion or otherwise. In the case of evidence relating to polygraph examinations, the proponent must have followed all the provisions of Rule 11-707 NMRA.

K.The chairperson may take administrative notice of those matters in which courts of this state may take judicial notice.

L.The rules of privilege shall be effective to the extent that they are required to be recognized in civil actions in the district courts of the state of New Mexico.

M.The chairperson shall admit evidence relevant only to those allegations against the appellant included in both the notice of contemplated action and the notice of final action or which are contested issues as set forth in the pre-hearing order.

N.The hearing shall be recorded by a video and/or audio-recording device under the supervision of the chairperson. No other recording of the hearing, by whatever means, shall be permitted without the approval of the chairperson.

O.The chief shall provide for and require that the chairperson to:

(1) appoint a signed language interpreter pursuant to the Signed Language Interpreting Practices Act, Section 61-34-1 to 61-34-17 NMSA 1978 to appellants whose hearing is so impaired that they cannot understand voice communication; appellant must provide proof of disability; and

(2) appoint a language interpreter pursuant to the Court Interpreter Act, Section 38-10-1 to 38-10-8 NMSA 1978 for hearing participants who do not understand English well enough to understand the proceedings.

N.M. Admin. Code § 10.12.12.18

Adopted by New Mexico Register, Volume XXVI, Issue 13, July 15, 2015, eff. 7/1/2015