Current through Register Vol. 35, No. 6, March 26, 2024
A. Filing
of request for hearing: A licensee shall initiate a request for hearing by
filing a timely, written request for hearing with the department, by delivery
of such request to the office of the secretary of the department in Santa Fe,
New Mexico. Such request must be sent by certified mail,
return-receipt-requested within twenty (20) days after service of the notice on
the licensee.
B. If a hearing is
requested, the department, within twenty (20) days of receipt of the request,
shall notify the licensee of the time and place of the hearing, the name,
address and telephone number of the person who shall conduct the hearing for
the department and the statutes and regulations authorizing the department to
take the contemplated action, which hearing shall be held not more than sixty
(60) nor less than fifteen (15) days from the date of service of said
notice.
C. Failure to request a
hearing: If the licensee does not make a timely written request for a hearing,
the department may take the action contemplated in the notice and such action
shall be final.
D. Appointment of a
hearing officer
(1) All hearings may be
conducted by a hearing officer who shall be a duly licensed New Mexico
attorney, excluding any attorney then employed by the office of general counsel
of the department. Upon receipt of the request for a hearing, the director of
the ethics bureau or the licensure bureau shall appoint the hearing officer.
Any hearing officer appointed to serve on a case shall at all times be held to
the same ethical standards of impartiality that are set forth in Section
21-300(B) of the New Mexico code of judicial conduct. The hearing officer may
issue a pre-hearing order limited to: setting deadlines for the exchange of
documents intended to be introduced; setting deadlines for the exchange of a
list of the name, address and telephone number of each witness a party intends
to call during the hearing; ordering the licensee to have his/her attorney, if
any, file within thirty (30) days a written notice of appearance with the
hearing officer with a copy to opposing party; and cautioning the parties of
their need to comply with Subsection G of 6.68.3.9 NMAC below. If either party
requests a pre-hearing conference with the hearing officer, such conference
shall be scheduled by the hearing officer and be held telephonically unless
both parties agree to meet in person.
(2) The hearing officer shall have the power:
(a) to have counsel to develop the case; to
administer oaths or affirmations to witnesses called to testify; to take
testimony; to examine witnesses; and to direct a continuance of any case;
hearing officers may also hold conferences before or during the hearing for the
settlement or simplification of the issues but such settlement or
simplification shall only be with the consent of the licensee;
(b) to hear pre-hearing motions: the hearing
officer shall issue a written order with a copy to both parties on any
pre-hearing motion filed by a party;
(c) to subpoena, for purposes of discovery
and of the hearing, witnesses and relevant books, papers, documents and other
evidence in compliance with Rule 1-045A to D of the rules of civil procedure
and New Mexico civil form 4-505; a party may also issue such subpoenas with the
approval of the hearing officer;
(d) to impose any appropriate evidentiary
sanction against a party who fails to provide discovery or to comply with a
subpoena; such sanctions could include the striking of a witness or the
striking of documentary evidence;
(e) to take notice of judicially cognizable
facts as well as of general, technical or scientific facts within his/her
specialized knowledge so long as the licensee is notified either before or
during the hearing of the fact so noticed and its source, and is afforded an
opportunity to contest said fact; and
(f) to impose costs on the licensee upon
motion of the department.
E. Discovery:
(1) Rules of discovery provided in Rules 26
through 37 of the New Mexico rules of civil procedures shall apply, except that
all deadlines for responding to requests for admissions, interrogatories, and
requests for production of documents shall be within ten (10) days of the
delivery of the request. No such request shall be made less than fifteen days
before the hearing.
(2) Upon
written request to another party, any party is entitled to:
(a) obtain the names and addresses of
witnesses who will or may be called by the other party to testify at the
hearing; and
(b) inspect and copy
any documents or items which the other party will or may introduce in evidence
at the hearing.
(3) Any
opposition to any pre-hearing motion filed by a party shall be filed within ten
(10) days of the service of that motion on the other party.
(4) This rule does not authorize either party
to seek discovery sanctions or relief from a district court.
(5) Any party may take depositions after
service of notice in accordance with the rules of civil procedure for the
district courts. Depositions may be used as in proceedings governed by those
rules.
F. Pleadings:
Parties shall serve copies of all pleadings on each other and the hearing
officer, shall sign and date each pleading and shall include a signed and dated
certificate of service with their pleadings.
G. Ex parte communications: Neither party nor
his/her attorney shall engage in ex parte communications with any hearing
officer appointed to hear a case or with the secretary on any matter regarding
a pending case. Likewise, a hearing officer shall not engage in ex parte
communications with either party or his/her attorney on any case to which that
hearing officer has been appointed. However, there may be occasions when brief
ex parte communications are warranted, for example, for scheduling,
administrative purposes, or emergencies that do not deal with substantive
matters or issues on the merits. A summary of what was communicated shall be
promptly disclosed to the individual who did not participate in the ex parte
communication. The secretary shall not engage in any ex parte communication
with any party, attorney or interested person on any matter or for any reason
related to a pending licensure suspension, revocation or other disciplinary
action case where a notice of contemplated action has been served on an
licensee pursuant to this regulation.
