Current through Register Vol. 35, No. 18, September 24, 2024
A. The commission shall
investigate allegations of violations of any statutes or constitutional
provisions over which the legislature gives it jurisdiction. [Such] Complaints
concerning such violations may be filed against any public official, public
employee, candidate, person subject to the Campaign Reporting Act, government
contractor, lobbyist, lobbyist's employer, or a restricted donor subject to the
Gift Act.
(1) The commission may initiate a
proceeding before the commission concerning an alleged violation:
(a) through the filing of a complaint with
the commission by any person which alleges that the complainant has actual
knowledge of the alleged violation of such statutes or constitutional
provisions;
(b) by initiating its
own complaint alleging a violation of any statute or constitutional provision
over which the commission has jurisdiction against a person subject to the
jurisdiction of the commission, pursuant to Paragraph (1) of Subsection C of
Section 10-16G-5 NMSA 1978; or
(c) by accepting a complaint filed with
another public agency or legislative body and forwarded by that agency or
legislative body to the commission pursuant to Subsection B or E of Section
10-16G-9 NMSA 1978.
(2) A complaint filed pursuant to
Subparagraph (a) of Paragraph (1) of Subsection A of
1.8.3.9 NMAC, shall:
(a) be filed electronically on the
commission's case management system, or on a form prescribed by the commission
and provided at no cost to the complainant or in a substantially equivalent
form, which the director or the director's designee shall record electronically
on the commission's case management system;
(b) state the name and, to the extent known
to the complainant, the respondent's mailing address, email address, telephone
number, and public office or other position;
(c) set forth in detail the specific claims
against the respondent and the supporting factual allegations, including, if
known to the complainant, any law that the respondent has allegedly
violated;
(d) include any evidence
that the complainant has that supports the complaint, which may include
documents, records and names of witnesses; and
(e) be signed and sworn to by the
complainant, under penalty of false statement.
(3) The director shall reject any complaint
filed pursuant to Subparagraph (a) of Paragraph (1) of Subsection A of
1.8.3.9 NMAC that fails to state
either the respondent's mailing address or email address, or is not signed and
sworn to by the complainant, under penalty of false statement and the
complainant will have the opportunity to refile the complaint.
(4) A complaint filed pursuant to
Subparagraph (a) of Paragraph (1) of Subsection A of
1.8.3.9 NMAC may be amended once as
a matter of course at any time before a responsive pleading is served.
Otherwise, the complainant may amend the complaint by leave of the director. An
amended complaint must be filed within seven days of the director's
determination under Paragraph (3) of Subsection [A] C of
1.8.3.10 NMAC that the commission
has jurisdiction over the complaint.
(5) Unless the director grants the
complainant leave, the commission shall not accept a complaint filed by a
complainant who, within the previous calendar year, filed two complaints that
were subsequently dismissed. In applying for leave to file a third or
subsequent complaint within the same calendar year, the complainant shall
explain how, as compared to the dismissed complaints, the proposed complaint
concerns different facts, asserts different claims, or asserts claims against
different respondents.
(6) By
registering and filing a complaint through the commission's case management
system, a party agrees to accept electronic service of subpoenas, notices, and
other filings as a condition of submitting filings with the
commission.
(7) Any party may
represent themselves or may be represented by a licensed attorney. Corporations
and other non-natural persons must be represented by counsel.
(a) Any attorney representing party shall
enter an appearance with the commission and register on the commission's case
management system. Upon receipt of the appearance, the commission shall direct
all official notices and correspondence to the attorney named in the written
appearance, at the address or location stated therein. Any official notice
received by any named attorney shall be deemed to have been received by the
represented party. An attorney may withdraw from representing a party before
the commission only with leave of the director and for a reason provided for by
Section B of Rule 16-116 NMRA.
(b)
If the respondent is a public official or state public employee subject to a
complaint alleging a violation made in the performance of the respondent's
duties, the respondent is entitled to representation by the risk management
division of the general services department. "Respondent's duties," within the
meaning of Subsection K of Section
10-16G-10 NMSA 1978 and this rule,
excludes:
(i) conduct undertaken by an
elected public official in furtherance of his or her campaign for election or
reelection; and
(ii) any duty or
obligation that by law is personal, rather than official, in nature.
(8) The commission may
proceed with any complaint that is forwarded to the commission by another
public agency, or by the legislature or a legislative committee pursuant to
Subparagraph (c) of Paragraph (1) of Subsection A of
1.8.3.9 NMAC, according to the
terms of any agreement for shared jurisdiction between the commission and the
referring agency or the legislative body, pursuant to Subsection E of Section
10-16G-9 NMSA 1978.
(9) No complaint may be accepted or
considered by the commission unless the date on which the complaint is received
by the commission, or the date on which the commission votes to initiate a
complaint, falls within the later of two years from the date:
(a) on which the alleged conduct occurred;
or
(b) the alleged conduct could
reasonably have been discovered.
(10) For the purpose of applying the two-year
statute of limitations established in Subsection A of Section
10-16G-15 NMSA 1978, the date on
which a complaint is filed with a public agency that refers the complaint to
the commission under the law, or under an agreement for shared jurisdiction,
shall be deemed the date of filing with the commission.
B. The commission shall not adjudicate a
complaint filed against a candidate, except under the Campaign Reporting Act or
Voter Action Act, fewer than 60 days before a primary or general election.
(1) This paragraph does not preclude during
the blackout period:
(a) the dismissal of
frivolous or unsubstantiated complaints, or dismissal or referral of complaints
outside the jurisdiction of the commission, as provided by these
rules;
(b) assigning to a hearing
officer and making public a complaint that is found to be supported by probable
cause pursuant to Subsection B of Section
1.8.3.13 NMAC before the blackout
period begins; or
(c) an
investigation related to the commission's discretion to file a court action to
enforce the civil compliance provisions of any statute or constitutional
provision over which the commission has jurisdiction.
(2) For complaints filed during and subject
to the blackout period, the director, or the director's designee, shall notify
the complainant:
(a) of the provisions of this
section regarding the blackout period;
(b) that the complainant may refer
allegations of criminal conduct to the attorney general or appropriate district
attorney at any time; and
(c) of
the deferral of commission action on the complaint for the duration of the
blackout period.
(3) The
director, or the director's designee, shall within five days notify a candidate
named as a respondent in a complaint filed during the 60-day pre-election
blackout period of:
(a) the filing of the
complaint;
(b) the specific
allegations and violations charged in the complaint; and
(c) the deferral of commission action on the
complaint for the duration of the blackout period.
C. The commission shall not
adjudicate a complaint that alleges conduct occurring only before July 1, 2019.
Any complaint filed with the commission or referred to the commission that
alleges conduct occurring only before July 1, 2019 shall be dismissed and, if
applicable, returned to the referring entity.
D. The director may consolidate a complaint
with any other pending complaint involving related questions of fact or laws;
provided that the consolidation will not unduly delay resolution of an
earlier-filed complaint, unduly prejudice any complainant, or compromise the
right of any complainant or respondent to confidentiality under these
rules.
E. The Commission may
initiate a complaint alleging a violation of any statute or constitutional
provision over which the commission has jurisdiction against a public official,
public employee, candidate, person subject to the Campaign Reporting Act,
government contractor, lobbyist, lobbyist's employer, or a restricted donor
subject to the Gift Act, if:
(1) any
commissioner or the director presents to the commission information or
documents showing a violation of any statute or constitutional provision over
which the commission has jurisdiction;
(2) the director determines that the
complaint would be within the commission's jurisdiction; and
(3) five commissioners vote to initiate the
complaint.
(4) A commissioner's
vote to initiate a complaint pursuant to this Subsection E is not grounds for
recusal pursuant to Subsection A of
1.8.2.8 NMAC.
F. If the commission initiates any complaint
under Paragraph (1) of Subsection C of Section
10-16G-5 NMSA 1978 and Subsection
E of 1.8.3.9 NMAC, then the director
shall:
(1) provide the respondent with notice
of the complaint in accordance with Subsection A of
1.8.3.10 NMAC; and
(2) forward the complaint to the general
counsel to initiate an investigation in accordance with
1.8.3.11 NMAC.
G. If the director determines that the
complaint, either in whole or in part, is subject to referral to another state
or federal agency in accordance with Subsection D of Section
10-16G-9 NMSA 1978, the terms of
an agreement entered into pursuant to the terms of Subsection E of Section
10-16G-9 NMSA 1978, Subsection D
of Section
10-16-14 NMSA 1978, Subsection C
of Section 1-19-34.4 NMSA 1978, or Subsection
B of Section
2-11-8.2 NMSA 1978, the director
shall refer some or all claims within the complaint to the appropriate agency
and, within ten days of the referral, provide notice to the respondent of the
referral.
H. When the commission
initiates its own administrative complaint, the commission may serve in an
appellate role after a hearing officer decision, and the commission will be
limited to reviewing the record developed at the hearing. As such, except as
provided in Subsection E of
1.8.3.9 NMAC, Subsections I & J
of Section
10-16G-10 NMSA 1978, Subsection A
of Section
10-16G-11 NMSA 1978, Subsection A
of 1.8.3.12 NMAC, or Subsection J of
1.8.3.14 NMAC, the commission shall
not receive any information related to a complaint filed pursuant to Paragraph
(1) of Subsection C of Section
10-16G-5 NMSA 1978 and Subsection
E of 1.8.3.9 NMAC until an appeal is
made pursuant to
1.8.3.15 NMAC.
