Current through Register Vol. 35, No. 6, March 26, 2024
A. Purpose: The
purpose of the hearing shall be to determine whether sufficient grounds exist
for the suspension, revocation or other disciplinary action against the license
or certificate held by a licensed school instructor, administrator or any other
of the individuals enumerated in Section
22-10A-3
A, NMSA 1978. The burden of proof shall be upon the department to establish by
a preponderance of the evidence that sufficient grounds exist.
B. Venue of hearing: The hearing shall be
conducted in the county in which the licensee resides, or at the election of
the department, in any county in which the act or acts complained of occurred.
In any case, however, the licensee and the department may agree that the
hearing is to be held in some other county.
C. Conduct of hearings
(1) The order of presentation of evidence
shall be as follows: The department shall present evidence in an attempt to
establish that sufficient grounds exist for the suspension, revocation or other
disciplinary action against the licensee's license. Thereafter, the licensee
may present evidence in defense. The hearing officer may allow rebuttal
evidence and/or closing arguments.
(2) The rules of civil procedure and the
rules of evidence shall not apply to the hearing, except as specifically
provided in this regulation, but it shall be conducted so that both complaints
and defenses are amply and fairly presented. To this end, the hearing officer
shall permit each party to call and examine witnesses, cross-examine witnesses
and introduce exhibits. Documentary evidence may be received in the form of
copies or excerpts. Evidence will be admitted without regard to technical rules
of evidence, but the hearing officer may exclude any evidence, which is not
relevant to the issues and may require reasonable substantiation of statements
or records where accuracy or truth is in reasonable doubt. Any evidence may be
admitted that is of a kind commonly relied on by reasonably prudent people in
the conduct of serious affairs. The hearing officer may in his or her
discretion exclude incompetent, irrelevant, immaterial or unduly repetitious
evidence. Rules of privilege shall be applicable to the same extent as in
proceedings before the courts of this state. Parties or their attorneys may
make timely objections to the introduction of any evidence they view as
inadmissible under this paragraph.
(3) A complete record shall be made of all
evidence received during the course of the hearing. The record shall be
preserved by any stenographic method in use in the district courts of this
state, or in the discretion of the department, by tape recording. The
department shall observe any standards pertaining to tape recordings
established for the district courts. In any event, the department shall have
one copy of the transcript or tape recording of the hearing for the secretary's
review in rendering a final decision. Where judicial review is sought, the
costs of required transcripts or tape recordings shall be paid by the party
seeking review.
(4) All witnesses
shall swear or affirm that their testimony will be truthful. A person
authorized to administer oaths shall swear each witness. The hearing officer
may determine the capacity of a witness to testify and may consider capacity in
determining the weight of the evidence. The hearing officer may refuse to admit
testimony from a proposed witness who is found lacking capacity.
(5) The hearing officer may require
post-hearing briefs to be submitted by the parties. Such briefs shall not
exceed twenty (20) pages in length, double-spaced, exclusive of attachments,
and shall be on paper eight and one-half by eleven inches in length.
D. If a licensee fails to appear
at a hearing and no continuance has been granted, the hearing officer may hear
the evidence of such witnesses as may have appeared and proceed to consider and
dispose of the case on the basis of the evidence before him/her in the manner
required under this regulation. Where a licensee fails to appear for a hearing
or fails to request a hearing due to sickness, accident or other good cause,
such licensee may apply to the hearing officer where he failed to appear, or to
the department where he failed to request a hearing, to reopen the proceeding,
and upon finding such cause sufficient, the hearing officer or the department,
as the case may be, shall schedule a hearing and give the licensee notice of
such as required by this regulation. The hearing officer may require evidence
to prove licensee's good cause in such cases.
E. Continuing jurisdiction
(1) Despite the expiration of a licensee's
licensure, the department shall continue to have jurisdiction to hear a case
under this regulation where the individual whose licensure expired was served a
notice of contemplated action prior to the expiration of the
licensure.
(2) The service of such
notice upon a licensee shall act to stay the expiration of licensure where that
individual's licensure was scheduled to expire and would expire during a
proceeding under this regulation but for the stay of the expiration.
(3) Where the secretary issues a final order
in which the licensee's licensure is neither revoked nor outright suspended,
then the individual shall be permitted to renew his/her licensure as though it
expired on the original expiration date as long as he/she satisfies all other
licensure requirements for the level and type of license sought. The licensure
bureau shall allow the individual 60 days from the secretary's final decision
to file a renewal application.
