Current through Register Vol. 35, No. 6, March 26, 2024
A. Conduct of adjudicatory hearings:
(1) Adjudicatory hearings before the appeal
tribunal shall be conducted in such a manner that all parties are afforded
basic rights of due process and that all pertinent facts necessary to the
determination of the rights of the parties are obtained. All hearings and
proceedings will be conducted informally in such a manner as to ascertain the
substantial rights of the parties and will not be governed by common law or
statutory rules as to the admissibility of evidence or by technical rules of
procedure, but the procedures shall afford the parties equally and impartially
the right to:
(a) call and examine witnesses
and to cross examine the opposing party's witnesses;
(b) introduce exhibits and offer rebuttal
evidence;
(c) object to questions
and to the introduction of improper or irrelevant testimony or evidence;
and
(d) submit written expositions
of the case, within the discretion of the administrative law judge.
(2) The appeal tribunal, on its
own initiative:
(a) may examine parties and
witnesses;
(b) require additional
evidence as it finds necessary to the determination of the issues before
it;
(c) may exclude testimony and
evidence which it finds to be incompetent, irrelevant or otherwise improper by
standards of common reasonableness: and
(d) if it deems appropriate, the appeal
tribunal may permit opening and closing statements.
B. Opportunity for fair hearing:
In conducting adjudicatory hearings, the appeal tribunal shall afford all
parties an opportunity for a full and fair hearing including an opportunity to
respond and present evidence and argument on all issues involved; provided that
the term "adjudicatory hearing" as used in this rule does not apply to
fact-finding interviews conducted by the department representative for purposes
of making an initial determination of eligibility for benefits or liability for
contributions, payments in lieu of contributions, interest or penalties under
the Unemployment Compensation Law.
C. Continuance, adjournment and reopening of
adjudicatory hearings:
(1) An adjudicatory
hearing before an appeal tribunal administrative law judge, for good cause
shown, may be continued or adjourned upon the request of a party or upon the
appeal tribunal's own motion, at any time before the hearing is concluded. A
claimant's right to a prompt determination of claimant's eligibility and
payment of benefits shall not be impaired by undue delay of
proceedings.
(2) If any party fails
to appear at a scheduled adjudicatory hearing, the appeal tribunal may, in its
best judgment, either adjourn the hearing until a later date or proceed to
render its decision on the record and the evidence then before it. Any decision
shall be subject to reopening before the appeal tribunal upon a showing of good
cause for the party's failure to appear as long as the request to reopen is
received no later than 15 days from the date of the decision .
(3) A reopening of any adjudicatory hearing
shall be granted upon showing of good cause, including good cause for not
appearing at the scheduled hearing, or may be ordered on the appeal tribunal's,
the board of review's or the secretary's own motion for good cause. A request
for reopening shall be made as soon as reasonably possible but in no event
later than 15 days after the decision of the appeal tribunal was
mailed.
(4) A request for a
continuance, adjournment or reopening shall be made to the appeal tribunal
administrative law judge as identified on the notice of hearing. If the
administrative law judge finds good cause for failing to appear, the merits of
the appeal shall be set for hearing. Notice of the date, time and place of a
reopened, postponed or adjourned hearing shall be given to the parties or their
representatives and shall include a statement of the issues to be heard. The
administrative law judge shall issue a decision approving or denying a request
for a continuance adjournment or reopening.
(5) A request for reopening made later than
15 days after the decision of the appeal tribunal was issued shall be heard by
the secretary or the board of review on the reason for the untimely request for
the reopening. If the secretary or the board of review finds good cause for the
late request, the merits of the appeal shall be set for hearing before the
appeal tribunal. Notice of the date, time and place of a reopened hearing shall
be given to the parties or their representatives and shall include a statement
of the issues to be heard.
D. Authority over conduct of adjudicatory
hearings. The appeal tribunal shall have and shall exercise full authority over
the conduct and behavior of parties and witnesses appearing before it to insure
a fair, orderly adjudicatory hearing and an expeditious conclusion of the
proceedings.
E. Mode of hearings:
(1) The appeal tribunal may conduct the
adjudicatory hearing by telephone or in person at the discretion of the appeal
tribunal. The mode of conducting the hearing will be as indicated in the notice
setting the hearing.
(2) Notice of
telephone hearing: If the hearing is to be by telephone, the notice shall so
inform the parties and will include instructions for informing the
administrative law judge of the necessary telephone numbers. If the hearing is
a telephonic hearing, no party or representative will be permitted to attend in
person. If the hearing is an in-person hearing, at the discretion of the
administrative law judge, a party, witness or representative will be permitted
to appear telephonically.
F. Exhibits:
(1) Exchange of exhibits prior to hearings:
(a) A party seeking to introduce exhibits
shall provide copies of all proposed exhibits to the other party. The copies
shall be transmitted by the offering party in a manner to insure their receipt
by the other party at least 48 hours prior to the date and time of the
scheduled hearing.
(b) A party
seeking to introduce exhibits shall provide copies of all proposed exhibits to
the administrative law judge at least 48 hours prior to any hearing. In no
event shall the administrative law judge be provided copies of exhibits not
previously transmitted by the offering party to the opposing party.
(c) Documents not submitted in accordance
with this subsection shall be denied admission and denied consideration by the
department:
(i) unless it is apparent that the
particular document was previously seen by the party whose interest is
affected, that party acknowledges having seen the document and has no objection
to its admission; or
(ii) the
administrative law judge, in the judge's discretion, determines that
fundamental fairness and the proper administration of the Unemployment
Compensation Law requires the admission of the document.
(d) In any case where the administrative law
judge determines that documentary evidence will be admitted over the objection
of a party that the party has not had an opportunity to review and consider the
evidence, a reasonable continuance shall be granted by the administrative law
judge to give the objecting party an opportunity to review the
evidence.
(2) Marking
exhibits: All exhibits tendered to the administrative law judge shall be
separately marked for identification. The employer's exhibits shall be denoted
E-1, E-2, E-3 and so forth; the claimant's exhibits shall be denoted C-1, C-2,
C-3 and so forth. A file, such as a personnel file, containing voluminous
documents need not be separately marked, but the pages shall be individually
numbered by the offering party prior to admission. Failure to sequentially
number the pages of a voluminous exhibit will be grounds to deny the admission
of the exhibit.
(3) Exhibits
admitted and considered by the administrative law judge shall be individually
identified on the record.
(4)
Exhibits denied admission: The reason for the denial of admission of tendered
exhibits shall be clearly stated on the record. Typical, but not exclusive,
reasons for the denial of admission of an exhibit is lack of relevancy,
immateriality, redundancy and voluminous unnumbered pages or documents.
Exhibits offered and denied admission shall be retained in the record, but
shall not form the basis for the decision of the administrative law judge. The
written decision shall reiterate the statement of exhibits denied admission and
the basis for the denial.
G. Record of hearings:
(1) Proper record: The appeal tribunal shall
ensure that all of the testimony, objections and motions or other matters in
connection therewith are fully and accurately recorded, in such a manner that a
complete and accurate transcript can be rendered therefrom as needed.
(2) The record in an adjudicatory hearing
shall include:
(a) all documents in the
department's files, pleadings, motions and previous rulings;
(b) documentary evidence received or
considered;
(c) a statement of
matters officially noticed;
(d)
questions, tenders of evidence, offers of proof, objections and rulings thereon
in the form of a tape recording or transcript;
(e) findings and conclusions; and
(f) any decision, opinion or report by the
cabinet secretary, board of review members or appeal tribunal administrative
law judge conducting the hearing.
(3) The department deems that the recording
of a proceeding made by the department is the official recording of the record.
(a) Inaudible recording: If the tape or
digital recording or a significant portion of it is demonstrated as inaudible
or otherwise unusable, if the parties do not stipulate as to the matters which
would have appeared on the recording if usable, the appeal tribunal may order a
rehearing de novo of all matters or of only the matters which were on the
unusable portions of recording.
(b)
Official transcript: The department or either party, at the party's expense,
may prepare a typed transcript of any such tape recording for the use of the
parties. Any typed transcript prepared by the department or under its
supervision may be designated by the appeal tribunal as the official
transcript. Typed transcripts prepared by a party shall not be deemed official
transcripts unless such transcript was transcribed with the department's
consent and prepared either in-person or from a department tape or digital
recording by an individual approved by the department. A copy of the typed
transcript of an appeal hearing may be made available without charge to parties
of an appeal pending before district court.
(c) Availability of recordings: Upon written
application, for good cause shown, a duplicate copy of the recording of all
testimony, objections and motions or other matters will be supplied to any
party to the proceeding. Unless the applicant is entitled to a copy of the
recording without charge or otherwise shows good cause as to why the party
should not be charged as provided in
11.3.100.106
NMAC, the applicant may be required to pay for a copy of the
recording.
H.
Factual information to be considered: All evidence, including any records,
investigation reports and documents in the possession of the adjudicatory body
which the department desires to avail itself as evidence in making a decision,
shall be made a part of the record in the proceedings, and no other factual
information or evidence shall be considered, except as provided in this
section. Documentary evidence may be received in evidence in the form of copies
or excerpts or by specific citation to page numbers in published
documents.
I. Briefs or memoranda
of law, requested findings of fact and conclusions of law: At any time during
an adjudicatory hearing and prior to a decision, the parties may be afforded a
reasonable opportunity to submit briefs or memoranda of law, proposed findings
of fact and conclusions of law, together with supporting reasons including
citations to the record and copies of case law, for the consideration of the
adjudicatory body.
J. Official
notice: Official notice may be taken of all facts of which judicial notice may
be taken and of other facts within the specialized knowledge of the board of
review or appeal tribunal administrative law judge, but whenever any such
member or officer takes official notice of a fact, the noticed fact and its
source shall be stated at the earliest practicable time, before or during the
adjudicatory hearing, but before the final decision, and any party shall, on
timely request, be afforded an opportunity to show the contrary.
K. Specialized knowledge of department: The
experience, technical competence and specialized knowledge of the department
and its staff may be utilized in the evaluation of the evidence by the
adjudicatory bodies of the department.
L. Decision of the appeal tribunal:
(1) Decision in writing: Following the
conclusion of an adjudicatory hearing on an appeal, the appeal tribunal shall
promptly announce its decision on the case. The decision shall be in writing,
shall include findings of fact and conclusions of law, and shall be signed by
the administrative law judge who heard the appeal.
(2) Findings of fact shall be based
exclusively on the record, the evidence presented at the tribunal hearing and
matters officially noted.
(3) The
residuum rule shall apply in the issuance of all decisions. This rule requires
that the decision of the department's appeal tribunal be supported by
"substantial evidence", that is evidence which would be admissible in a court
of law. A decision of the appeal tribunal cannot be made on the basis of
controverted hearsay evidence alone; there must be a residuum of legal evidence
which would be admissible in a court of law.
(4) Where an appeal was not filed within the
statutory appeal period, the appeal tribunal shall, after review of the record
conduct an evidentiary hearing with notice to all interested parties to
determine whether the appellant has good cause for failure to timely appeal
from an initial determination. Any decision that grants a request for reopening
or finds good cause for failure to timely appeal from an initial determination
cannot be appealed. Any decision that denies a request for reopening shall
include the appeal tribunal's findings and conclusions for the denial. Either
party if aggrieved may file an appeal on the merits of any written decision
issued by the administrative law judge to higher authority.
(5) Publication of decision: Copies of any
decision issued by the appeal tribunal shall be promptly transmitted to all
interested parties to the appeal.
M. Remand by appeal tribunal: The appeal
tribunal may, in its discretion, remand any issue developed from evidence
presented at the hearing or apparent from the existing record to the department
with an order directing that a determination be made with regard to that issue
or that additional procedures be taken to perfect a determination already
issued or to make other disposition in the matter.
