N.M. Admin. Code § 8.8.4.9

Current through Register Vol. 35, No. 23, December 10, 2024

Section 8.8.4.9 - PRE-HEARING

A. Within five business days of receipt of the request for administrative hearing, the division director, or his/her designee, submits a memorandum of information to the hearing office, with a copy of the notice of contemplated action, cease and desist order, or emergency suspension order and a copy of the notice of appeal included. An additional copy of those items will be forwarded to the department's office of general counsel.

B. Unless otherwise agreed, the hearing officer and all parties will confer within 30 days from the date the memorandum of information is received in the hearing office to choose an agreeable date for hearing.

C. The hearing shall be held within 180 days from the date the memorandum of information is received in the hearing office. Extensions may only be granted under extenuating circumstances as determined by the hearing officer.

D. Upon receipt of the memorandum of information, cease and desist order, or emergency suspension order and copy of the notice of appeal, the hearing officer or hearing office administrator establishes an official record which will contain all the filed notices, pleadings, briefs, recommendations, correspondence, documents or items admitted into evidence, recordings of the proceedings, and decisions. The hearing officer will make contact with the parties as soon as practicable, but in any case, no later than seven days from the date the appeal is filed in the hearing office.

E. No person may discuss the merits of any pending adjudicatory proceeding with the designated hearing officer or the secretary, unless both parties or their representatives are present.

F. The hearing officer may consolidate or join cases if there is commonality of legal issues or parties and if it would expedite final resolution of the cases and would not adversely affect the interests of the parties. The hearing officer may join the appeals of an appellant who has two or more appeals pending.

G. The hearing officer may permit a person to enter into a proceeding as an intervenor only when the intervention is necessary to protect some right or interest of that person which may be directly affected by the proceedings. The purpose of an intervention is to prevent delay and unnecessary duplication. A request may be denied, however, if it interferes with the rights of the original parties to conduct their cause on their own terms.

H. Upon request of a party or upon the hearing officer's own motion, a pre-hearing order may be required or a pre-hearing conference may be scheduled by the hearing officer at a time and place reasonably convenient to all parties to:

(1) limit and define issues;

(2) discuss possible pre-hearing dispositions;

(3) set a discovery plan;

(4) consider possible admissions of fact or stipulations;

(5) identify and limit the number of witnesses; and

(6) discuss such other matters as may aid in the simplification of evidence and disposition of the proceedings.

I. A pre-hearing conference is an informal proceeding and may occur telephonically. The pre-hearing conference may or may not be recorded, at the discretion of the hearing officer.

J. No offer of settlement made in a pre-hearing conference is admissible as evidence at a later hearing. Stipulations and admissions are binding and may be used as evidence at the hearing. Any stipulation, settlement or consent order reached between the parties is written and signed by the hearing officer and the parties or their attorneys.

K. The hearing officer may dismiss an appeal with prejudice in accordance with the provisions of a settlement agreement approved by the hearing officer, upon a motion to withdraw the appeal at any time before the deadline for the completion of discovery, or for failure to prosecute.

M. Upon request of a party or upon the hearing officer's own motion, a status conference may be held to assess pre-hearing issues and progression of the case. A status conference is an informal proceeding and may occur telephonically. The status conference may or may not be recorded, at the discretion of the hearing officer.

N. The hearing officer has the power to compel the appearance of witnesses and the production of written materials or other evidence the hearing officer may deem relevant or material. The hearing officer, upon request by a party, may issue subpoenas and subpoenas duces tecum. The parties have a right to discovery limited to depositions or interviews of named witnesses, interrogatories, requests for production, and requests for admission. The parties shall confer in good faith to schedule requested interviews or depositions. All discovery is subject to the control of the hearing officer and may be made a part of the pre-hearing order.

N.M. Admin. Code § 8.8.4.9

8.8.4.9 NMAC - N, 2/15/2002, Adopted by New Mexico Register, Volume XXVII, Issue 05, March 15, 2016, eff. 3/15/2016