N.M. Admin. Code § 6.68.2.13

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

Section 6.68.2.13 - PRE-HEARING PROCEDURES

A. Filing of request for hearing: An applicant shall initiate a request for hearing by filing a timely, written request for hearing with the PED, by delivery of such request to the PED's office of the secretary 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 applicant.

B. If a hearing is requested, the PED, within twenty (20) days of receipt of the request, shall notify the applicant of the time and place of the hearing, the name, address and telephone number of the person who shall conduct the hearing for the PED and the statutes and rules authorizing the PED 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 applicant does not make a timely written request for a hearing, the PED 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, but who shall not be any attorney then employed by the office of general counsel of the PED. Upon receipt of the request for a hearing, the director of the EEB or the PLB 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 Subsection B of Section 21-300 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 applicant to have their 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 6.68.2.13 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 applicant;

(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 their specialized knowledge so long as the applicant 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 applicant upon motion of the PED.

E. Discovery:

(1) Rules of discovery provided in Rules 26 through 37 (26-37) 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 (15) 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 their 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 their 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 denial or other disciplinary action case where a notice of contemplated action has been served on an licensee pursuant to this rule.

N.M. Admin. Code § 6.68.2.13

6.68.2.13 NMAC - Rp, 6 NMAC 4.2.4.4.13, 11-30-05; A, 01-29-10