N.M. Code R. § 20.11.81.12 General Provisions

• Library: New Mexico Administrative Code
• Edition: 2023
• Currency: Current through Register Vol. 34, No. 24, December 19, 2023
• Citation: N.M. Code R. § 20.11.81.12
• Year: 2023

A. Applicability of rules of civil procedure and rules of evidence: In the absence of a specific provision in 20.11.81 NMAC governing an action, the board and the board's 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 board.

B. Board and hearing officer powers and duties-qualification, disqualification, recusal, withdrawal:

(1) Board: The board shall exercise all powers and duties authorized and required by the act, 20.11.81 NMAC and any other board regulation if the powers and duties are not otherwise delegated by 20.11.81 NMAC to a board staff member, a hearing officer or the hearing clerk The board or a hearing officer appointed or authorized by the board may specify procedures in addition to, or that vary from the procedures provided in 20.11.81 NMAC in order to expedite the efficient resolution of the action or to avoid obvious injustice, if the procedures do not conflict with the act or the regulations, or prejudice the rights of any party.

(2) Hearing officer: The board may appoint a hearing officer or authorize the hearing clerk to secure one or more hearing officers to perform the functions described in Paragraph (2) of Subsection B of 20.11.81.12 NMAC. From the date a proceeding is initiated pursuant to 20.11.81 NMAC, the chair or acting chair of the board shall serve as hearing officer until another hearing officer is appointed or authorized by the board and is secured by the hearing clerk. The appointment of a hearing officer shall not prevent any board member from attending or participating in any proceeding (a) Qualifications: A hearing officer may be an independent contractor, board counsel or a member of the board and shall not be:(i) an employee of the department, unless employed by the department as a hearing officer; or (ii) a person who is disqualified as a result of a condition described in Subparagraph (a) of Paragraph (3) of Subsection B of 20.11.81.12 NMAC. (b) Functions: The hearing officer shall exercise all powers and duties required by or delegated under the act and 20.11.81 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 for the maintenance of order and for the efficient, fair and impartial adjudication of issues arising in proceedings governed by 20.11.81 NMAC, including, but not limited to: (i) conducting hearings pursuant to 20.11.81 NMAC; (ii) ruling upon motions and procedural requests that do not seek final resolution of the proceeding, and issuing all necessary orders; (iii) issuing subpoenas, as authorized by law, for the attendance and testimony of witnesses and the production of documentary evidence; (iv) administering oaths and affirmations examining witnesses, and admitting or excluding evidence; (v) requiring parties to attend conferences for the settlement or simplification of issues, or the expedition of proceedings; (vi) imposing sanctions, subject to review and approval by the board, on parties and interested participants who cause undue delay and fail to cooperate with the board; and (vii) filing with the hearing clerk all original documents received or generated by the hearing officer. (c) Notice of hearing officer assignment: If a hearing officer other than a board member is assigned as a hearing officer, the hearing clerk shall notify the parties of the name and address of the hearing officer. At the same time, the hearing clerk also shall forward to the hearing officer copies of all documents related to the petition that have been filed to date.

(3) Board member and hearing officer disqualification-recusal-withdrawal: (a) A board member or a hearing officer shall not perform any function authorized by 20.11.81 NMAC regarding any matter in which a board member or a hearing officer: (i) has a...