New Mexico Administrative Code
Title 1 - GENERAL GOVERNMENT ADMINISTRATION
Chapter 8 - STATE ETHICS COMMISSION
Part 5 - COMPLAINTS AGAINST NOTARIES
Section 1.8.5.9 - NOTICE OF CONTEMPLATED ACTION; HEARINGS; ADVERSE ACTIONS

Universal Citation: 1 NM Admin Code 1.8.5.9

Current through Register Vol. 35, No. 18, September 24, 2024

A. After investigating the complaint pursuant to 1.8.5.8 NMAC, the director shall determine whether the facts and the law support taking an adverse action against the respondent.

(1) If the director determines that an adverse action against the respondent is not supported by the facts or the law, the director shall issue a notice to the complainant and the respondent that, subject to the Commission's approval, the Commission will dismiss the complaint.

(2) If the director determines that an adverse action against the respondent is supported by the facts and the law, the director shall send the respondent a notice of contemplated action. The notice of contemplated action gives formal notice that the commission may take an adverse action against the respondent. That notice shall inform the respondent that the respondent may defend against the contemplated action at a hearing before a hearing officer. The notice shall detail the process and rights afforded in an administrative hearing and shall be sent to the respondent in the manner provided by Paragraph (2) of Subsection C of 1.8.5.8 NMAC.

B. If the respondent does not respond to a notice of contemplated action within 30 days, the respondent's failure to respond amounts to a waiver of the respondent's right to a hearing, and the commission may take an adverse action against the respondent's authority to perform notarial acts. The commission's adverse action, if any, shall take place at an open meeting.

C. If the respondent exercises their right to a hearing, a hearing officer shall hold a hearing to determine whether, under a preponderance of the evidence presented, the adverse action specified in the notice of contemplated action should be adopted, modified, or set aside.

D. At any hearing conducted pursuant to these rules, the director and the respondent may call witnesses, present objections, and submit evidence relevant to the hearing officer's disposition of the notice of contemplated action. The hearing need not be conducted according to the rules of evidence, and any relevant evidence, including hearsay of probative value, is admissible. Oral evidence shall be taken only on oath or affirmation. Evidence which possesses probative value commonly accepted by reasonable and prudent persons in the conduct of their affairs may be admitted and given probative value. The rules of privilege shall be given effect, and incompetent, immaterial, and unduly repetitious evidence may be excluded. Documentary evidence may be received in the form of copies or excerpts, or by incorporation by reference.

E. If, after a hearing, the hearing officer finds the respondent committed an action that supports the notice of contemplated action or other adverse action, the hearing officer shall produce for the commission a report and recommendation, recommending any adverse action available under the Revised Uniform Law on Notarial Acts.

F. Upon receiving the hearing officer's report and recommendation, the commission may take any adverse action against the respondent permitted under the Revised Uniform Law on Notarial Acts, including denial of, suspension of, revocation of, or the imposition of a condition on a notarial officer's authority to perform notarial acts.

G. At any time, the director may enter into a settlement agreement with the respondent. All settlement agreements are subject to approval by the commission.

H. Any decision to take an adverse action against a respondent by the commission will take place at an open meeting. If the commission takes an adverse action against a respondent, the director shall provide the Secretary of State with the order and accompanying case file.

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