Current through Register Vol. 35, No. 18, September 24, 2024
A.
Applicability of rules of civil procedure and rules of evidence: In the absence
of a specific provision in 20.11.80 NMAC governing an action, the hearing
officer may look to the New Mexico Rules of Civil Procedure, NMRA 1-001 et
seq., and the New Mexico Rules of Evidence, NMRA 11-101 et seq., for guidance.
No provision of the rules of civil procedure shall be construed to extend or
otherwise modify the authority and jurisdiction of the director.
B. Liberal construction: 20.11.80 NMAC shall
be liberally construed to carry out its purpose.
C. Director and hearing officer - powers and
duties - disqualification and withdrawal:
(1)
Director: The director shall exercise all powers and duties authorized and
required by the act and 20.11.80 NMAC that are not otherwise delegated by
20.11.80 NMAC to the hearing officer or the hearing clerk. The director or
hearing officer may specify procedures in addition to, or that vary from, the
procedures provided in 20.11.80 NMAC in order to expedite the efficient
resolution of the action or to avoid obvious injustice.
(2) Hearing officer: The director shall
appoint a hearing officer or hearing officers to perform the functions
described in Subparagraph (b) of Paragraph (2) of Subsection C of 20.11.80.12
NMAC.
(a) Qualifications and
disqualifications: A hearing officer may be an independent contractor, a
hearing officer at the city of Albuquerque office of administrative hearings or
similar successor city organizational unit, an employee of the department who
is not air program staff, or an employee of a different city department. A
hearing officer shall not be:
(i) an employee
of or staff for the air program;
(ii) an employee of or staff for the
department unless employed by the department as a hearing officer;
(iii) a person who has a personal bias or
prejudice concerning a party, has personal knowledge of disputed facts
concerning the proceeding, is related to a party within the third degree of
relationship or has a financial interest in the proceeding;
(iv) a person who has performed prosecutorial
or investigative functions in connection with the matter at issue in the
proceeding; or
(v) an officer,
director or trustee of a party to the proceeding.
(b) Hearing officer functions: The hearing
officer shall exercise all powers and duties required or delegated by the
director pursuant to the act and 20.11.80 NMAC. The hearing officer shall
conduct a fair and impartial proceeding, assure that the facts are fully
elicited and avoid delay. The hearing officer shall have authority to take all
measures necessary to maintain order and the efficient, fair and impartial
adjudication of issues arising in proceedings governed by 20.11.80 NMAC,
including, but not limited to:
(i) conducting
hearings authorized by 20.11.80 NMAC;
(ii) ruling upon motions, procedural requests
and offers of proof, and issuing all necessary orders;
(iii) administering oaths and affirmations,
examining witnesses and admitting or excluding evidence;
(iv) requiring parties to attend conferences
for the settlement or simplification of issues, or for expediting
proceedings;
(v) imposing
sanctions, subject to review and approval by the director, on parties who cause
undue delay or fail to cooperate in the proceeding; and
(vi) filing with the hearing clerk all
original documents received by the hearing officer.
(3) Director and hearing
officer; disqualification or withdrawal:
(a)
The director may not perform functions authorized by 20.11.80 NMAC regarding
any matter in which the director:
(i) has a
personal bias or prejudice concerning a party, has personal knowledge of
disputed facts concerning the proceeding, is related to a party within the
third degree of relationship or has a financial interest in the
proceeding;
(ii) has performed
prosecutorial or investigative functions in connection with the matter at issue
in the proceeding; or
(iii) is an
officer, director or trustee of a party to the proceeding.
(b) The director shall not be disqualified
solely because the director has been briefed on the matter before a compliance
order is issued.
(c) A party may
request the withdrawal or disqualification of the director or the hearing
officer by filing a motion that includes a reason for disqualification listed
in either Subparagraph (a) of Paragraph (3) of Subsection C of 20.11.80.12 NMAC
or Subparagraph (a) of Paragraph (2) of Subsection C of 20.11.80.12 NMAC, as
applicable. The motion shall be filed within 10 days after the later of the
date the compliance order has been docketed or the hearing officer has been
designated, or, if a new director or new hearing officer is appointed, within
10 days after the new director takes office or the new hearing officer is
appointed, as applicable.
(d) A
motion seeking withdrawal or disqualification of the director or the hearing
officer shall be ruled upon by the director. If the director withdraws or is
disqualified, the duties of the director shall be assumed by an associate
director, deputy director or other person who would not be subject to
disqualification and does not directly oversee the air
program.
D.
Recording of hearings: All hearings on the merits shall be recorded by a court
reporter unless otherwise directed by the director or hearing officer. The
recording made by the court reporter will be the sole official recording of the
hearing. The hearing clerk shall make the transcription part of the record
proper, which is a public record except as otherwise provided by law.
E. Computation and extension of time:
(1) Computation of time: In computing any
period of time prescribed or allowed by 20.11.80 NMAC, except as otherwise
specifically provided, the day of the event from which the designated period
begins to run shall not be included. The last day of the computed period shall
be included, unless it is a Saturday, Sunday or legal city of Albuquerque
holiday, in which event, the time shall be extended until 5:00 p.m. on the next
day that is not a Saturday, Sunday or legal city of Albuquerque holiday.
Whenever a party must act within a prescribed period after service upon that
party and service is by mail, three days shall be added to the prescribed
period. The three-day extension does not apply to a deadline established by the
act.
(2) Extensions of time: When a
motion is filed, the hearing officer or director, as appropriate for the stage
of the proceeding at the time the motion is filed, may grant an extension of
time for filing a document or may grant continuance of a hearing. No extension
shall be granted regarding a deadline established by the act.
F. Ex parte contact. Between the
time a compliance order has been issued and the time the director issues a
final order or the request for hearing has been withdrawn, no person shall have
ex parte contact with the director or the hearing officer regarding the merits
of a pending compliance order or motion filed pursuant to 20.11.80 NMAC. The ex
parte restriction established in the immediately-preceding sentence does not
apply to the director, the hearing officer or the hearing clerk.
G. Document - filing, service, form and
examination:
(1) Filing of documents:
(a) except as otherwise provided, the
original of all documents served in the proceeding shall be filed with the
hearing clerk; and
(b) the party
that files a document shall serve a copy of the document on all other parties.
All documents shall be filed at least 15 days before the hearing at which the
hearing officer or director will consider the matter unless otherwise ordered
by the hearing officer. A certificate of service like the certificate of
service shown in Subsection J of 20.11.80.12 NMAC shall accompany each filed
document.
(2) Service of
Documents: Except as otherwise provided or ordered by the hearing officer, all
documents shall be served personally, mailed by express or first class mail,
or, if the person being served has agreed in writing, sent by facsimile or by
electronic transmission. Service by mail is complete when the document is
mailed. Service by facsimile or electronic transmission is accomplished when
transmission of the document is complete. If the person being served is
represented by an attorney, service shall be made on the attorney. Delivery
receipts shall be kept as proofs of service and shall be produced immediately
upon the request of the hearing officer, the director or another
party.
(3) Form of documents:
(a) If feasible, all documents in paper form
shall be prepared on 8 1/2 inch x 11 inch white paper, printed double-sided.
Where appropriate, the first page of every document shall include the caption
or heading required by Subsection J of 20.11.80.12 NMAC. The contents, except
quotations and footnotes, shall be double spaced.
(b) The original of each document, except
exhibits, shall be signed by the party or the party's attorney or other
representative, and shall include the address, e-mail address if any, and
telephone number of the person who signed. The signature constitutes a
certification that the signer has read the document; that, to the best of the
signer's knowledge, information and belief, there are good grounds to support
the document; and that, except for motions for extension of time, the document
is not interposed or submitted for purposes of delay.
(c) A notice of service that is required by
20.11.80 NMAC shall be deemed adequate if made to the most recent address
provided by the person upon whom service is made.
H. Filing and service of documents
issued by director or hearing officer: Every document issued by the director
and the hearing officer shall be filed with the hearing clerk. The hearing
clerk shall promptly serve copies of the document upon all parties.
I. Examination of documents filed: Pursuant
to the New Mexico Inspection of Public Records Act at Chapter 14, Article 2
NMSA 1978 and all applicable city of Albuquerque ordinances and administrative
instructions, during normal business hours and subject to the provisions of law
restricting public disclosure of confidential information, any person may
inspect and copy any document filed in any proceeding pursuant to 20.11.80
NMAC. The documents shall be made available by the hearing clerk, as
authorized.
J. Samples - caption;
certificate of service:
CITY OF ALBUQUERQUE
ENVIRONMENTAL HEALTH DEPARTMENT
CITY OF ALBUQUERQUE
ENVIRONMENTAL HEALTH DEPARTMENT
AIR QUALITY DIVISION
Complainant,
v.
Administrative Compliance Order No. [year] -[indiv. order
#]
[ Note: Confirm the compliance order number with the
hearing clerk before filing.]
[NAME OF RESPONDENT],
Respondent.
[TITLE OF DOCUMENT: COMPLIANCE ORDER, MOTION FOR
..., etc.]
By: ________________________________
[Signature]
____________________________________
[ Print or type name]
Title: _______________________________
Address: ____________________________
Telephone Number: _______ ____________
E-mail: _________________ ____________
CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing
[insert: name of document] was [mailed by
first class mail/express mail/hand delivered/ sent by facsimile/ sent by
electronic transmission] to [insert: names of
persons upon whom service was made: attorney/party] on this ____ day
of [month], 20___.
[List names of persons served:]
By ______________________________
[Signature of person certifying
service]
_________________________________
[ Print or type name]
