Current through Register Vol. 35, No. 18, September 24, 2024
A. Upon receiving notice of the director's
determination that the commission has jurisdiction over the complaint, the
general counsel shall determine whether the complaint is frivolous or
unsubstantiated, or supported by probable cause.
B. To perform the investigation into whether
probable cause supports the complaint, the general counsel, or the general
counsel's designee, may administer oaths, interview witnesses under oath, and
examine books, records, documents and other evidence reasonably related to the
complaint. The general counsel, or the general counsel's designee, may:
(1) Request to inspect books, records,
documents and other evidence reasonably related to a complaint; request the
complainant or respondent to admit certain facts; and serve written
interrogatories, to be responded to under oath at a time therein
specified;
(2) Interview a witness
under oath and outside the presence of the parties; and
(3) Notice and take the deposition of any
person, including any party, subject to the following provisions:
(a) The general counsel, or the general
counsel's designee, may put the witness on oath or affirmation and shall
personally, or by someone acting at the general counsel's direction, record the
testimony of the witness.
(b) Any
objection during a deposition shall be stated concisely in a non-argumentative
and non-suggestive manner. Objections to form or foundation may only be made by
stating "objection-form" or "objection-foundation". When a question is pending,
or a document has been presented to the witness, no one may interrupt the
deposition until the answer is given, except when necessary to preserve a
privilege.
(c) All objections shall
be noted by the general counsel or the general counsel's designee upon the
record of the deposition; but the examination shall proceed, with the testimony
being taken subject to the objections, except where the objection is based on
an assertion of privilege made in good faith.
(d) The general counsel, or the general
counsel's designee, shall certify on the deposition that the witness was duly
sworn by the general counsel or the general counsel's designee and that the
deposition is a true record of the testimony given by the witness.
(e) A witness who appears at a deposition may
receive one day's expenses provided by Subsection A of Section
10-8-4 NMSA 1978 as per diem for
nonsalaried public officers attending a board or committee meeting and the
mileage provided by Subsection D of Section
10-8-4 NMSA 1978. The Commission
is not required to tender expenses and mileage before the witness appears at a
deposition, and may require the witness to provide information needed to
facilitate payment of expenses and mileage (such as IRS form W9) as a condition
of payment.
C. It is not grounds for objection that the
information sought will be inadmissible at the hearing if the information
sought appears reasonably calculated to lead to the discovery of admissible
evidence. If a party refuses to respond to the general counsel's request for
information or discovery requests, to attend a deposition, or to answer
questions at a deposition noticed under this subsection, unless the party's
refusal is based on an assertion of privilege made in good faith, the general
counsel, when deciding whether a complaint is supported by probable cause, may
draw an adverse inference against the party refusing to testify. If a party
fails to provide information or identify a witness in response to a request by
the general counsel, the party is not allowed to use that information or
witness to supply evidence on a motion, at a hearing, or on appeal, unless
either a hearing officer or the commission determines the failure was
substantially justified or is harmless.
