New Mexico Administrative Code
Title 11 - LABOR AND WORKERS' COMPENSATION
Chapter 3 - EMPLOYMENT SECURITY
Part 500 - ADJUDICATORY HEARINGS, FILING OF APPEALS AND NOTICE
Section 11.3.500.9 - ADJUDICATORY PROCEEDINGS GENERALLY
Current through Register Vol. 35, No. 18, September 24, 2024
A. Right to representation: In any adjudicatory hearing before the department:
B. The unauthorized practice of law: Any party may be represented by an attorney at law licensed to practice in the courts of this state. A representative or agent other than licensed attorneys may represent any party only to the extent that such participation does not constitute unauthorized practice of law under the statute and rules of the courts of the state of New Mexico.
C. Copies: Consistent with the provisions of Section 51-1-32 NMSA 1978 and 11.3.100. 106 NMAC, while any proceeding before the department is ongoing a party to such proceeding may request and receive from the department, without charge, one set of copies of the department files and records, including but not limited to investigation reports, statements, memoranda, correspondence, recordings or transcripts of hearings or other data pertaining to matters under consideration, scheduled for hearing, or other proceeding before the department. Thereafter, copies shall be charged at the department's usual rate for copying.
D. Notice of hearing: Upon the scheduling of an adjudicatory hearing before the appeal tribunal on any appeal, a notice of the hearing shall be transmitted to all interested parties at least 10 calendar days prior to the date of the adjudicatory hearing and shall include:
E. Subpoenas: Authorized representatives of the department may issue subpoenas requiring, upon reasonable notice, the attendance and testimony of witnesses or the production of evidence, including books, records, correspondence, documents, papers or other objects necessary and relevant to any proceeding before the department. An authorized representative in any proceeding may authorize the taking of depositions of witnesses in the same manner and to the same extent as permitted in the district court.
F. Disqualification of board of review members and appeal tribunal administrative law judges: An appeal tribunal administrative law judge or board of review member shall withdraw from any proceeding in which the appeal tribunal administrative law judge or board of review member cannot accord a fair and impartial hearing or consideration and from any proceeding in which the appeal tribunal administrative law judge or board of review member has an interest. Any party may request a disqualification of an appeal tribunal administrative law judge or board of review member on the grounds of the person's inability to be fair and impartial, by filing an affidavit or written statement or making a statement on the record with the appeal tribunal or board of review promptly upon the discovery of the alleged grounds for disqualification, stating with particularity the grounds upon which it is claimed that the person cannot be fair and impartial. The disqualification shall be mandatory if sufficient factual basis is set forth in the affidavit of disqualification. If a board of review member is disqualified pursuant to this regulation, the remaining board of review members may appoint an appeal tribunal administrative law judge or other qualified department representative to sit on the board of review for the proceeding involved. The grant or denial of a requested disqualification can be considered in an appeal on the merits.
G. Attorneys at law and authorized representatives: Prior to or at the commencement of any adjudicatory hearing, all attorneys at law or other authorized representatives shall file a written entry of appearance which shall be made a part of the record and a copy shall be furnished by the attorney or representative to the opposing party. The entry of appearance shall be signed by the attorney at law or authorized representative, whose mailing address, telephone number and other contact addresses shall be provided. An attorney or representative who has provided notice of representation will be deemed to continue such representation until a written notification of the withdrawal of such representation is provided to all parties, the administrative law judge or the board of review. Even if an attorney or authorized representative has entered his appearance on behalf of a party, the party may appear on his own behalf without the attorney or authorized representative.
H. Ex parte communications: No party or representative of a party or any other person shall communicate off the record about the merits of the case with the cabinet secretary, any administrative law judge or board of review member who participates in making the decision for any adjudicatory hearing, unless the communication is written and a copy of the communication is transmitted to all interested parties to the proceeding. The cabinet secretary, any administrative law judge, board of review member or their representatives shall not communicate off the record about the merits of an adjudicatory hearing with any party or representative of a party or any other person, unless a copy of the communication is sent to all interested parties in the proceeding.
I. Requirements for hearing evidence or reviewing record: The cabinet secretary, board of review member or appeal tribunal administrative law judge shall not participate in any decision for any adjudicatory hearing unless the cabinet secretary, board of review member or appeal tribunal administrative law judge has heard the evidence or reviewed the record.