Section 9. Complaints

FILING REQUIREMENTS AND LIMITATIONS; AMENDMENTS; NOTICE; TIME LIMITATIONS; CONSOLIDATION; COMMISSION-INITIATED COMPLAINTS: A. The commission shall investigate allegations of violations of any statutes or constitutional provisions over which the legislature gives it jurisdiction. Complaints concerning such violations may be filed against any public official, public employee, candidate, person subject to the Campaign Reporting Act, government contractor, lobbyist, lobbyist’s employer, or a restricted donor subject to the Gift Act. (1) The commission may initiate a proceeding before the commission concerning an alleged violation: (a) through the filing of a complaint with the commission by any person which alleges that the complainant has actual knowledge of the alleged violation of such statutes or constitutional provisions; (b) by initiating its own complaint alleging a violation of any statute or constitutional provision over which the commission has jurisdiction against a person subject to the jurisdiction of the commission, pursuant to Paragraph (1) of Subsection C of Section 10-16G-5 NMSA 1978; or (c) by accepting a complaint filed with another public agency or legislative body and forwarded by that agency or legislative body to the commission pursuant to Subsection B or E of Section 10- 16G-9 NMSA 1978. (2) A complaint filed pursuant to Subparagraph (a) of Paragraph (1) of Subsection A of 1.8.3.9 NMAC, shall: (a) be filed electronically on the commission’s case management system, or on a form prescribed by the commission and provided at no cost to the complainant or in a substantially equivalent form, which the director or the director’s designee shall record electronically on the commission’s case management system; (b) state the name and, to the extent known to the complainant, the respondent’s mailing address, email address, telephone number, and public office or other position; (c) set forth in detail the specific claims against the respondent and the supporting factual allegations, including, if known to tor or the director’s designee shall record electronically on the commission’s case management system; (b) state the name and, to the extent known to the complainant, the respondent’s mailing address, email address, telephone number, and public office or other position; (c) set forth in detail the specific claims against the respondent and the supporting factual allegations, including, if known to the complainant, any law that the respondent has allegedly violated; (d) include any evidence that the complainant has that supports the complaint, which may include documents, records and names of witnesses; and (e) be signed and sworn to by the complainant, under penalty of false statement. (3) The director shall reject any complaint filed pursuant to Subparagraph (a) of Paragraph (1) of Subsection A of 1.8.3.9 NMAC that fails to state either the respondent’s mailing address or email address, or is not signed and sworn to by the complainant, under penalty of false statement and the complainant will have the opportunity to refile the complaint. 1.8.3 NMAC 3 (4) A complaint filed pursuant to Subparagraph (a) of Paragraph (1) of Subsection A of 1.8.3.9 NMAC may be amended once as a matter of course at any time before a responsive pleading is served. Otherwise, the complainant may amend the complaint by leave of the director. An amended complaint must be filed within seven days of the director’s determination under Paragraph (3) of Subsection C of 1.8.3.10 NMAC that the commission has jurisdiction over the complaint. (5) Unless the director grants the complainant leave, the commission shall not accept a complaint filed by a complainant who, within the previous calendar year, filed two complaints that were subsequently dismissed. In applying for leave to file a third or subsequent complaint within the same calendar year, the complainant shall explain how, as compared to the dismissed complaints, the proposed complaint concerns different facts, asserts different claims, or asserts claims against different respondents a complainant who, within the previous calendar year, filed two complaints that were subsequently dismissed. In applying for leave to file a third or subsequent complaint within the same calendar year, the complainant shall explain how, as compared to the dismissed complaints, the proposed complaint concerns different facts, asserts different claims, or asserts claims against different respondents. (6) By registering and filing a complaint through the commission’s case management system, a party agrees to accept electronic service of subpoenas, notices, and other filings as a condition of submitting filings with the commission. (7) Any party may represent themselves or may be represented by a licensed attorney. Corporations and other non-natural persons must be represented by counsel. (a) Any attorney representing party shall enter an appearance with the commission and register on the commission’s case management system. Upon receipt of the appearance, the commission shall direct all official notices and correspondence to the attorney named in the written appearance, at the address or location stated therein. Any official notice received by any named attorney shall be deemed to have been received by the represented party. An attorney may withdraw from representing a party before the commission only with leave of the director and for a reason provided for by Section B of Rule 16-116 NMRA. (b) If the respondent is a public official or state public employee subject to a complaint alleging a violation made in the performance of the respondent’s duties, the respondent is entitled to representation by the risk management division of the general services department. “Respondent’s duties,” within the meaning of Subsection K of Section 10-16G-10 NMSA 1978 and this rule, excludes: (i) conduct undertaken by an elected public official in furtherance of his or her campaign for election or reelection; and (ii) any duty or obligation that by law is personal, rather than official, in nature esentation by the risk management division of the general services department. “Respondent’s duties,” within the meaning of Subsection K of Section 10-16G-10 NMSA 1978 and this rule, excludes: (i) conduct undertaken by an elected public official in furtherance of his or her campaign for election or reelection; and (ii) any duty or obligation that by law is personal, rather than official, in nature. (8) The commission may proceed with any complaint that is forwarded to the commission by another public agency, or by the legislature or a legislative committee pursuant to Subparagraph (c) of Paragraph (1) of Subsection A of 1.8.3.9 NMAC, according to the terms of any agreement for shared jurisdiction between the commission and the referring agency or the legislative body, pursuant to Subsection E of Section 10-16G-9 NMSA 1978. (9) No complaint may be accepted or considered by the commission unless the date on which the complaint is received by the commission, or the date on which the commission votes to initiate a complaint, falls within the later of two years from the date: (a) on which the alleged conduct occurred; or (b) the alleged conduct could reasonably have been discovered. (10) For the purpose of applying the two-year statute of limitations established in Subsection A of Section 10-16G-15 NMSA 1978, the date on which a complaint is filed with a public agency that refers the complaint to the commission under the law, or under an agreement for shared jurisdiction, shall be deemed the date of filing with the commission. B. The commission shall not adjudicate a complaint filed against a candidate, except under the Campaign Reporting Act or Voter Action Act, fewer than 60 days before a primary or general election h a complaint is filed with a public agency that refers the complaint to the commission under the law, or under an agreement for shared jurisdiction, shall be deemed the date of filing with the commission. B. The commission shall not adjudicate a complaint filed against a candidate, except under the Campaign Reporting Act or Voter Action Act, fewer than 60 days before a primary or general election. (1) This paragraph does not preclude during the blackout period: (a) the dismissal of frivolous or unsubstantiated complaints, or dismissal or referral of complaints outside the jurisdiction of the commission, as provided by these rules; (b) assigning to a hearing officer and making public a complaint that is found to be supported by probable cause pursuant to Subsection B of Section 1.8.3.13 NMAC before the blackout period begins; or (c) an investigation related to the commission’s discretion to file a court action to enforce the civil compliance provisions of any statute or constitutional provision over which the commission has jurisdiction. (2) For complaints filed during and subject to the blackout period, the director, or the director’s designee, shall notify the complainant: 1.8.3 NMAC 4 (a) of the provisions of this section regarding the blackout period; (b) that the complainant may refer allegations of criminal conduct to the attorney general or appropriate district attorney at any time; and (c) of the deferral of commission action on the complaint for the duration of the blackout period. (3) The director, or the director’s designee, shall within five days notify a candidate named as a respondent in a complaint filed during the 60-day pre-election blackout period of: (a) the filing of the complaint; (b) the specific allegations and violations charged in the complaint; and (c) the deferral of commission action on the complaint for the duration of the blackout period. C. The commission shall not adjudicate a complaint that alleges conduct occurring only before July 1, 2019 ed as a respondent in a complaint filed during the 60-day pre-election blackout period of: (a) the filing of the complaint; (b) the specific allegations and violations charged in the complaint; and (c) the deferral of commission action on the complaint for the duration of the blackout period. C. The commission shall not adjudicate a complaint that alleges conduct occurring only before July 1, 2019. Any complaint filed with the commission or referred to the commission that alleges conduct occurring only before July 1, 2019 shall be dismissed and, if applicable, returned to the referring entity. D. The director may consolidate a complaint with any other pending complaint involving related questions of fact or laws; provided that the consolidation will not unduly delay resolution of an earlier-filed complaint, unduly prejudice any complainant, or compromise the right of any complainant or respondent to confidentiality under these rules. E. The Commission may initiate a complaint alleging a violation of any statute or constitutional provision over which the commission has jurisdiction against a public official, public employee, candidate, person subject to the Campaign Reporting Act, government contractor, lobbyist, lobbyist’s employer, or a restricted donor subject to the Gift Act, if: (1) any commissioner or the director presents to the commission information or documents showing a violation of any statute or constitutional provision over which the commission has jurisdiction; (2) the director determines that the complaint would be within the commission’s jurisdiction; and (3) five commissioners vote to initiate the complaint. (4) A commissioner’s vote to initiate a complaint pursuant to this Subsection E is not grounds for recusal pursuant to Subsection A of 1.8.2.8 NMAC. F violation of any statute or constitutional provision over which the commission has jurisdiction; (2) the director determines that the complaint would be within the commission’s jurisdiction; and (3) five commissioners vote to initiate the complaint. (4) A commissioner’s vote to initiate a complaint pursuant to this Subsection E is not grounds for recusal pursuant to Subsection A of 1.8.2.8 NMAC. F. If the commission initiates any complaint under Paragraph (1) of Subsection C of Section 10-16G- 5 NMSA 1978 and Subsection E of 1.8.3.9 NMAC, then the director shall: (1) provide the respondent with notice of the complaint in accordance with Subsection A of 1.8.3.10 NMAC; and (2) forward the complaint to the general counsel to initiate an investigation in accordance with 1.8.3.11 NMAC. G. If the director determines that the complaint, either in whole or in part, is subject to referral to another state or federal agency in accordance with Subsection D of Section 10-16G-9 NMSA 1978, the terms of an agreement entered into pursuant to the terms of Subsection E of Section 10-16G-9 NMSA 1978, Subsection D of Section 10-16-14 NMSA 1978, Subsection C of Section 1-19-34.4 NMSA 1978, or Subsection B of Section 2-11- 8.2 NMSA 1978, the director shall refer some or all claims within the complaint to the appropriate agency and, within ten days of the referral, provide notice to the respondent of the referral. H. When the commission initiates its own administrative complaint, the commission may serve in an appellate role after a hearing officer decision, and the commission will be limited to reviewing the record developed at the hearing tor shall refer some or all claims within the complaint to the appropriate agency and, within ten days of the referral, provide notice to the respondent of the referral. H. When the commission initiates its own administrative complaint, the commission may serve in an appellate role after a hearing officer decision, and the commission will be limited to reviewing the record developed at the hearing. As such, except as provided in Subsection E of 1.8.3.9 NMAC, Subsections I & J of Section 10-16G- 10 NMSA 1978, Subsection A of Section 10-16G-11 NMSA 1978, Subsection A of 1.8.3.12 NMAC, or Subsection J of 1.8.3.14 NMAC, the commission shall not receive any information related to a complaint filed pursuant to Paragraph (1) of Subsection C of Section 10-16G-5 NMSA 1978 and Subsection E of 1.8.3.9 NMAC until an appeal is made pursuant to 1.8.3.15 NMAC. [1.8.3.9 NMAC-N, 01/01/2020; A, 09/14/2021; A, 7/1/2023] 1.8.3.10 DIRECTOR’S RESPONSIBILITIES UPON RECEIVING A COMPLAINT; RESPONDENT’S OPPORTUNITY TO RESPOND; JURISDICTIONAL REVIEW; REFERRALS; NOTIFICATION TO PARTIES: A. Within seven days of receiving a complaint, the director shall notify the respondent of the filing of the complaint; provided that, for any complaint filed pursuant to Subparagraph (a) of Paragraph (1) of Subsection A 1.8.3 NMAC 5 of 1.8.3.9 NMAC, the director shall ensure that the complaint satisfies the filing requirements set forth in Paragraph (1) of Subsection A of 1.8.3.9 NMAC before notifying the respondent of the filing of the complaint. B. Upon receiving a complaint pursuant to Subparagraph (a) or (c) of Paragraph (1) of Subsection A of 1.8.3.9 NMAC, the director shall, within 10 days, review the complaint to determine whether it is within the commission’s jurisdiction. C int satisfies the filing requirements set forth in Paragraph (1) of Subsection A of 1.8.3.9 NMAC before notifying the respondent of the filing of the complaint. B. Upon receiving a complaint pursuant to Subparagraph (a) or (c) of Paragraph (1) of Subsection A of 1.8.3.9 NMAC, the director shall, within 10 days, review the complaint to determine whether it is within the commission’s jurisdiction. C. If the director determines that a complaint is within the jurisdiction of the commission, unless otherwise provided in Subsection D of this Section, the director shall: (1) provide the complainant with notice that the commission has jurisdiction for the complaint; (2) provide the respondent with notice of the complaint and inform the respondent that the respondent may file with the commission a responsive pleading answering the complaint’s assertion of facts and presenting arguments that the complaint is frivolous, unsubstantiated or not supported by probable cause within 15 days from the date of receiving the director’s notification and serve the same upon the complainant; and (3) forward the complaint to the general counsel to initiate an investigation. Upon receiving the respondent’s responsive pleading, the general counsel may request the complainant to file a reply by a date set out in the request. D. If the director determines that the complaint, is subject to referral to another state or federal agency, pursuant to Subsection D of Section 10-16G-9, the terms of an agreement entered into pursuant to the terms of Subsection E of Section 10-16G-9 NMSA 1978, Subsection D of Section 10-16-14 NMSA 1978, Subsection C of Section 1-19-34.4 NMSA 1978, or Subsection B of Section 2-11-8.2 NMSA 1978, the director shall refer some or all claims within the complaint to the appropriate agency and, unless a determination is made under Section 10-16G- 10(H) NMSA 1978 to delay notification, within ten days of the referral, shall provide notices to the complainant and the respondent of the referral. E SA 1978, Subsection C of Section 1-19-34.4 NMSA 1978, or Subsection B of Section 2-11-8.2 NMSA 1978, the director shall refer some or all claims within the complaint to the appropriate agency and, unless a determination is made under Section 10-16G- 10(H) NMSA 1978 to delay notification, within ten days of the referral, shall provide notices to the complainant and the respondent of the referral. E. If the director determines that the complaint is within the jurisdiction of the commission and recommends that the commission should not act on some or all aspects of the complaint, then the commission shall decide whether to dismiss some or all aspects of the complaint under Subsection C of Section 10-16G-9 NMSA 1978. F. If the director determines that the complaint is neither within the jurisdiction of the commission nor subject to referral to another agency, the commission shall dismiss the complaint. G. Subject to Subsection E of Section 1.8.3.15 NMAC, the director shall notify the complainant and respondent in writing of any action taken under Subsections C through F of 1.8.3.10 NMAC, unless notification has been delayed by the commission pursuant to Subsection H of Section 10-16G-10 NMSA 1978 and Subsection E of 1.8.3.15 NMAC. Neither the complaint nor the action taken on the complaint shall be made public by the commission or any staff member or contractor of the commission, but the complainant or respondent shall not be prevented from making public the complaint or any action taken on the complaint. H n delayed by the commission pursuant to Subsection H of Section 10-16G-10 NMSA 1978 and Subsection E of 1.8.3.15 NMAC. Neither the complaint nor the action taken on the complaint shall be made public by the commission or any staff member or contractor of the commission, but the complainant or respondent shall not be prevented from making public the complaint or any action taken on the complaint. H. With respect to any complaint filed with or under investigation by the commission, the director shall consult with the attorney general, an appropriate district attorney or the United States attorney if: (1) when reviewing a complaint for jurisdiction, the director determines that the complaint alleges conduct on the part of the respondent or another that appears reasonably likely to amount to a criminal violation; or (2) the commission, any commission staff member, or any commission hearing officer finds at any time that a respondent’s conduct appears reasonably likely to amount to a criminal violation. (3) Nothing in Section 10-16G-14 NMSA 1978 or in this section prevents the commission from taking any action authorized by the State Ethics Commission Act or deciding to suspend an investigation pending resolution of any criminal charges.