Section 11. General Counsel’S Investigation

A. Upon receiving notice of the director’s determination that the commission has jurisdiction over the complaint, the general counsel shall determine whether the complaint is frivolous or unsubstantiated, or supported by probable cause. B. To perform the investigation into whether probable cause supports the complaint, the general counsel, or the general counsel’s designee, may administer oaths, interview witnesses under oath, and examine books, records, documents and other evidence reasonably related to the complaint. The general counsel, or the general counsel’s designee, may: 1.8.3 NMAC 6 (1) Request to inspect books, records, documents and other evidence reasonably related to a complaint; request the complainant or respondent to admit certain facts; and serve written interrogatories, to be responded to under oath at a time therein specified; (2) Interview a witness under oath and outside the presence of the parties; and (3) Notice and take the deposition of any person, including any party, subject to the following provisions: (a) The general counsel, or the general counsel’s designee, may put the witness on oath or affirmation and shall personally, or by someone acting at the general counsel’s direction, record the testimony of the witness. (b) Any objection during a deposition shall be stated concisely in a non- argumentative and non-suggestive manner. Objections to form or foundation may only be made by stating “objection—form” or “objection—foundation”. When a question is pending, or a document has been presented to the witness, no one may interrupt the deposition until the answer is given, except when necessary to preserve a privilege. (c) All objections shall be noted by the general counsel or the general counsel’s designee upon the record of the deposition; but the examination shall proceed, with the testimony being taken subject to the objections, except where the objection is based on an assertion of privilege made in good faith nterrupt the deposition until the answer is given, except when necessary to preserve a privilege. (c) All objections shall be noted by the general counsel or the general counsel’s designee upon the record of the deposition; but the examination shall proceed, with the testimony being taken subject to the objections, except where the objection is based on an assertion of privilege made in good faith. (d) The general counsel, or the general counsel’s designee, shall certify on the deposition that the witness was duly sworn by the general counsel or the general counsel’s designee and that the deposition is a true record of the testimony given by the witness. (e) A witness who appears at a deposition may receive one day’s expenses provided by Subsection A of Section 10-8-4 NMSA 1978 as per diem for nonsalaried public officers attending a board or committee meeting and the mileage provided by Subsection D of Section 10-8-4 NMSA 1978. The Commission is not required to tender expenses and mileage before the witness appears at a deposition, and may require the witness to provide information needed to facilitate payment of expenses and mileage (such as IRS form W9) as a condition of payment. C. It is not grounds for objection that the information sought will be inadmissible at the hearing if the information sought appears reasonably calculated to lead to the discovery of admissible evidence. If a party refuses to respond to the general counsel’s request for information or discovery requests, to attend a deposition, or to answer questions at a deposition noticed under this subsection, unless the party’s refusal is based on an assertion of privilege made in good faith, the general counsel, when deciding whether a complaint is supported by probable cause, may draw an adverse inference against the party refusing to testify e general counsel’s request for information or discovery requests, to attend a deposition, or to answer questions at a deposition noticed under this subsection, unless the party’s refusal is based on an assertion of privilege made in good faith, the general counsel, when deciding whether a complaint is supported by probable cause, may draw an adverse inference against the party refusing to testify. If a party fails to provide information or identify a witness in response to a request by the general counsel, the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or on appeal, unless either a hearing officer or the commission determines the failure was substantially justified or is harmless. [1.8.3.11 NMAC-N, 01/01/2020; A, 09/14/2021; A, 7/1/2023] 1.8.3.12 SUBPOENAS; ENFORCEMENT: A. If the general counsel determines it is necessary, the director shall request the commission’s authority to file a petition with the designated district court judge or other judge pro tempore as designated pursuant to order of the chief judge of the supreme court: (1) to issue a subpoena to obtain testimony of a person or the production of books, records, documents or other evidence reasonably related to an investigation; (2) to order enforcement if the person subpoenaed neglects or refuses to comply; or (3) to resolve any assertion of privilege. B. Upon the commission’s approval, the director, or the director’s designee, may petition the designated district court judge, or another district court judge if the designated judge is not available, for a subpoena. The petition shall be filed ex parte and under seal pursuant to procedures for filing established by the designated district court judge. C (3) to resolve any assertion of privilege. B. Upon the commission’s approval, the director, or the director’s designee, may petition the designated district court judge, or another district court judge if the designated judge is not available, for a subpoena. The petition shall be filed ex parte and under seal pursuant to procedures for filing established by the designated district court judge. C. If the petition is granted, subpoenas shall be issued by the general counsel and served as follows: (1) If the subject of the subpoena is the complainant or the respondent, by email to the complainant or respondent if the complainant or respondent has previously agreed to receive notice of filings with the commission by email; (2) On a department or agency of the state by service on the department or agency’s general counsel, or by service in the manner set out by law for serving the department or agency; and 1.8.3 NMAC 7 (3) On any other person by handing it to the person or their attorney, leaving it at the person’s office or dwelling house with some person of suitable age and discretion then residing there. D. A subpoena issued pursuant to this Section may command the appearance of a witness at a deposition or at a hearing pursuant to 1.8.3.14 NMAC. A person who is not a party or an officer of a party may not be commanded to travel to a place more than one hundred (100) miles from the place where that person resides, is employed, or regularly transacts business in person unless the subpoena is to attend and give testimony at a hearing. A subpoena ordering a person to attend a deposition via telephone or web conference complies with the requirements of this subsection. E. A party claiming an interest in the materials responsive to the commission’s subpoena or the recipient of the subpoena may serve a written objection on the general counsel or the general counsel’s designee within 14 days after service of the subpoena a hearing. A subpoena ordering a person to attend a deposition via telephone or web conference complies with the requirements of this subsection. E. A party claiming an interest in the materials responsive to the commission’s subpoena or the recipient of the subpoena may serve a written objection on the general counsel or the general counsel’s designee within 14 days after service of the subpoena. If an objection is timely served, the person subject to a subpoena need not comply with the subpoena until the commission files a motion to compel compliance pursuant to Subsection F of 1.8.3.12 NMAC and the motion is granted. F. If a person, including a party, neglects or refuses to comply with a subpoena, the director or the director’s designee, upon the commission’s approval, may apply to a district court for an order enforcing the subpoena and compelling compliance. The designated district judge or other district court may impose sanctions or other relief permitted by law, including contempt, if a person neglects or refuses to comply with an order enforcing the subpoena and compelling compliance. [1.8.13.12 NMAC-N, 09/14/2021] 1.8.3.13 PROBABLE CAUSE DETERMINATIONS AND CONSEQUENCES; INVESTIGATION REPORTS AND RECOMMENDATIONS TO COMMISSION; DISPOSITION BY AGREEMENT; NOTICE TO PARTIES: A. At the conclusion of the investigation provided by 1.8.3.11 NMAC, the general counsel shall determine whether the complaint is frivolous or unsubstantiated. (1) If the general counsel determines that a complaint is frivolous or unsubstantiated, a hearing officer must dismiss the complaint. In that event, the complainant and the respondent shall be notified in writing of the decision and the reasons for the dismissal. 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 event, the complainant and the respondent shall be notified in writing of the decision and the reasons for the dismissal. 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. (2) If the general counsel determines that a complaint is not frivolous or unsubstantiated, the general counsel shall prepare a summary of the investigation and a specification setting forth all violations reasonably related to the allegations in the complaint. The general counsel shall provide the summary, the specification, and all supporting evidence to the executive director. The executive director shall designate a hearing officer meeting the qualifications set out in Subsection A of 1.8.3.14 NMAC to determine whether the complaint is supported by probable cause. B. Within 30 days of being appointed pursuant to Paragraph 2 of Subsection A of this Section, the hearing officer shall enter a written decision as to whether the complaint is supported by probable cause. To determine whether the complaint is supported by probable cause, the hearing officer must find that the evidence supports a finding that a violation has occurred. The degree of proof necessary to establish probable cause is more than a suspicion or possibility but less than a certainty of proof. (1) If the hearing officer decides that the complaint is supported by probable cause, the hearing officer shall prepare a written order to that effect and provide it to the executive director. The executive director shall then promptly notify both the complainant and the respondent of the hearing officer’s determination and that a public hearing will be set, provided that the notification has not been delayed by order of the commission pursuant to Subsection H of Section 10-16G-10 NMSA 1978 ng officer shall prepare a written order to that effect and provide it to the executive director. The executive director shall then promptly notify both the complainant and the respondent of the hearing officer’s determination and that a public hearing will be set, provided that the notification has not been delayed by order of the commission pursuant to Subsection H of Section 10-16G-10 NMSA 1978. (2) If the hearing officer decides that the complaint is not supported by probable cause, the executive director shall promptly notify both the complainant and the respondent of the hearing officer’s decision and inform the complainant of their right to appeal the hearing officer’s decision to the commission pursuant to 1.8.3.15 NMAC. C. The general counsel may at any time enter into a proposed settlement agreement of the complaint with the respondent. The proposed settlement agreement shall be presented to the commission for approval. If the complaint alleges, or the general counsel has found probable cause to support, a discriminatory practice or action by the respondent against the complainant, no settlement agreement may be reached without prior consultation with the complainant. If approved by the commission, the settlement agreement shall be subject to public disclosure. 1.8.3 NMAC 8 D. At any time, the complainant may voluntarily dismiss the complaint, either in whole or in part, by filing a notice of voluntarily dismissal with the commission; however, any notice of voluntary dismissal does not diminish the power of the commission to initiate a complaint under Paragraph 1 of Subsection C of Section 10-16G- 5 NMSA 1978. If the general counsel has determined the complaint is supported by probable cause, the complainant may dismiss the complaint only on motion and on such terms and conditions as the hearing officer deems proper. E mission; however, any notice of voluntary dismissal does not diminish the power of the commission to initiate a complaint under Paragraph 1 of Subsection C of Section 10-16G- 5 NMSA 1978. If the general counsel has determined the complaint is supported by probable cause, the complainant may dismiss the complaint only on motion and on such terms and conditions as the hearing officer deems proper. E. If a hearing has not been scheduled concerning the disposition of a complaint within 90 days after the complaint has been received from the complainant or after referral from another agency, whichever is later, the director shall report to the commission at a duly convened meeting on the status of the investigation. The commission and the director shall thereafter proceed in accordance with Section 10-16G-11 NMSA 1978. F. At any time before or during a hearing, the hearing officer may, at a duly convened public meeting, approve a disposition of a complaint agreed to by the general counsel and the respondent, provided that: (1) the complainant shall be consulted on the proposed agreement prior to its execution, and (2) the agreement shall be effective upon approval by the commission at a public meeting. [1.8.3.12 NMAC-N, 01/01/2020; Rn 1.8.3.13 NMAC & A, 09/14/2021; A, 7/1/2023] 1.8.3.14 HEARING OFFICERS; SUMMARY DISPOSITION; HEARINGS; INTERPRETERS; EVIDENCE: A. The commission shall authorize the director to contract, for reasonable hourly compensation, with qualified persons to act as hearing officers. Hearing officers shall be assigned to act on or preside over hearings on complaints. Hearing officers must be currently licensed attorneys, or retired judges of the appellate, district, or metropolitan courts of New Mexico or any federal court, who are familiar with the ethics and election laws enforced by the commission. A hearing officer shall conduct a hearing fairly and impartially g officers. Hearing officers shall be assigned to act on or preside over hearings on complaints. Hearing officers must be currently licensed attorneys, or retired judges of the appellate, district, or metropolitan courts of New Mexico or any federal court, who are familiar with the ethics and election laws enforced by the commission. A hearing officer shall conduct a hearing fairly and impartially. A hearing officer who determines whether a complaint is supported by probable cause pursuant to Subsection B of Section 1.8.3.13 NMAC shall not preside over a hearing on the merits of the same complaint. B. All hearings before the hearing officer will occur in Santa Fe or Albuquerque, or at such other location within the state as may be determined by the hearing officer. In selecting the location of a hearing other than in Santa Fe or Albuquerque, the hearing officer shall consider and give weight to the location and reasonable concerns of the respective parties, witnesses, and representatives in the proceeding. Upon a showing by any party of an undue burden, the hearing officer may move the hearing to a more appropriate venue. C. If a hearing officer has not already notified the parties of a hearing through the issuance of a scheduling order, the director will notify the parties to the hearing by mail, directed to the address provided by the parties, of the date, time, and place scheduled for the hearing, at least 15 days before the scheduled hearing. D. The hearing shall be conducted pursuant to the rules of evidence governing proceedings in the state courts, Rule 11-101 NMRA, and these procedural rules. In the event of a conflict between these procedural rules and the rules of evidence governing proceedings in the state courts, these procedural rules control. All hearings shall be open to the public in accordance with the Open Meetings Act, Section 10-15-1 NMSA 1978, except for hearings or portions thereof exempted from the requirements of that Act. E Rule 11-101 NMRA, and these procedural rules. In the event of a conflict between these procedural rules and the rules of evidence governing proceedings in the state courts, these procedural rules control. All hearings shall be open to the public in accordance with the Open Meetings Act, Section 10-15-1 NMSA 1978, except for hearings or portions thereof exempted from the requirements of that Act. E. Audio recordings shall be made of all hearings conducted pursuant to this section. F. The parties may be represented by counsel, who shall enter an appearance at the earliest opportunity, pursuant to Paragraph (7) of Subsection A of 1.8.3.9 NMAC. G. The hearing officer shall permit the general counsel to intervene upon request. If the complaint was initiated by the commission under Paragraph (1) of Subsection C of Section 10-16G-5 NMSA 1978 and Subsection E of 1.8.3.9 NMAC, then the executive director shall represent the commission at the hearing. H. The hearing officer shall have the duty to conduct fair and impartial hearings, to take all necessary action to avoid delay in the proceedings and to maintain order. The hearing officer shall have the powers necessary to carry out these duties, including the following: (1) to administer or have administered oaths and affirmations; (2) to cause depositions to be taken; (3) to require the production or inspection of documents and other items; (4) to require the answering of interrogatories and requests for admissions; (5) to rule upon offers of proof and receive evidence; (6) to regulate the course of the hearings and the conduct of the parties and their representatives therein; (7) to issue a scheduling order, schedule a prehearing conference for simplification of the issues, or any other proper purpose; 1.8.3 NMAC 9 (8) to schedule, continue and reschedule hearings; (9) to consider and rule upon all procedural and other motions appropriate in the proceeding; (10) to require the filing of briefs on specific legal issues prior to or after the hearing; (11) to cause a complet to issue a scheduling order, schedule a prehearing conference for simplification of the issues, or any other proper purpose; 1.8.3 NMAC 9 (8) to schedule, continue and reschedule hearings; (9) to consider and rule upon all procedural and other motions appropriate in the proceeding; (10) to require the filing of briefs on specific legal issues prior to or after the hearing; (11) to cause a complete audio record of hearings to be made; (12) to make and issue decisions and orders; and (13) to reprimand, or with warning in extreme instances exclude from the hearing, any person for engaging in a continuing pattern of disruptive or other improper conduct that interferes with the conduct of a fair and orderly hearing or development of a complete record. I. In the performance of these adjudicative functions, the hearing officer is prohibited from engaging in any improper ex parte communications about the substantive issues with any party on any matter, but may communicate with parties separately solely on scheduling issues if all parties are notified of such communications and do not object to them. An improper ex parte communication occurs when the hearing officer discusses the substance of a case without the opposing party being present, except that it is not an improper ex parte communication for the hearing officer to go on the record with only one party when the other party has failed to appear at a scheduled hearing despite having received timely notice thereof. J. Parties who appear at the hearing may: (1) request the director to request the commission’s authority to petition a district court to compel the presence of witnesses. Subpoenas may be requested by the commission from a district court in the same manner as provided for in Subsection J of Section 10-16G-10 NMSA 1978 and Subsections C and D of 1.8.3.11 NMAC; (2) present evidence and testimony; (3) examine and cross-examine witnesses; and (4) introduce evidentiary material developed by the general counsel tition a district court to compel the presence of witnesses. Subpoenas may be requested by the commission from a district court in the same manner as provided for in Subsection J of Section 10-16G-10 NMSA 1978 and Subsections C and D of 1.8.3.11 NMAC; (2) present evidence and testimony; (3) examine and cross-examine witnesses; and (4) introduce evidentiary material developed by the general counsel. Before the hearing, the general counsel shall timely disclose to the parties all evidence in the possession or within the control of the general counsel, other than privileged information. K. Evidence shall be presented by the parties at the hearing consistent with the terms agreed to in a prehearing conference or as set forth in a scheduling order entered under Subsection H of 1.8.3.14 NMAC. The hearing officer may allow a deviation from the agreed-upon process for good cause. (1) The general counsel shall present any evidence collected in the investigation relating to the complaint that is relevant to the matters at issue as set forth in the general counsel’s findings under Subsection A of 1.8.3.12 NMAC; evidence that is agreed to be relevant by the parties; or evidence that is allowed by the hearing officer. If the general counsel has intervened as a party pursuant to Section G of 1.8.3.14 NMAC, the general counsel must be afforded a reasonable opportunity to seek prehearing discovery necessary to meet any anticipated defense raised by the respondent to the claims identified in the specification of violations prepared by the general counsel pursuant to Subsection B of 1.8.3.13 NMAC. (2) The respondent may present evidence that is relevant to the matters at issue as set forth in the general counsel’s findings under Subsection A of 1.8.3.12 NMAC; evidence that is agreed to be relevant by the parties; or evidence that is otherwise allowed by the hearing officer dentified in the specification of violations prepared by the general counsel pursuant to Subsection B of 1.8.3.13 NMAC. (2) The respondent may present evidence that is relevant to the matters at issue as set forth in the general counsel’s findings under Subsection A of 1.8.3.12 NMAC; evidence that is agreed to be relevant by the parties; or evidence that is otherwise allowed by the hearing officer. (3) The general counsel or the general counsel’s designee may authenticate evidence produced during an investigation if the source of the evidence declines a request to appear and testify about the evidence and the hearing officer determines that there are no other reasonable means for authenticating the evidence. L. Any person may timely file an amicus brief, not to exceed ten pages, with the director, for consideration by the hearing officer. M. Upon reasonable notice by the party to the director, a party needing language interpreter services for translation of one language into another, and any interpreter required to be provided under the American with Disabilities Act, shall be provided for by the commission. While the person serving as an interpreter need not be a court-certified interpreter in order to provide interpretation at a hearing, any person serving as an interpreter in a hearing before the commission must affirm the interpreter’s oath applicable in courts across this state. N. After the termination of the hearing, or in lieu of a hearing if, upon a motion by a party or the general counsel, the hearing officer concludes there is no genuine dispute as to any material facts, the hearing officer shall issue written findings and conclusions on whether the evidence establishes that the respondent’s conduct as alleged in the complaint constitutes a violation of any law within the jurisdiction of the commission ng, or in lieu of a hearing if, upon a motion by a party or the general counsel, the hearing officer concludes there is no genuine dispute as to any material facts, the hearing officer shall issue written findings and conclusions on whether the evidence establishes that the respondent’s conduct as alleged in the complaint constitutes a violation of any law within the jurisdiction of the commission. The hearing officer’s written decision: (1) may (a) impose any fines provided for by law; and 1.8.3 NMAC 10 (b) recommend to the appropriate authority commensurate disciplinary action against the respondent; (2) and must (a) state the reasons for the hearing officer’s decision; and (b) provide the parties with notice of the right of appeal to the commission. O. Clear and convincing evidence is required to support a finding by a hearing officer that a respondent’s conduct was fraudulent or willful. P. If the hearing officer finds by a preponderance of the evidence that the respondent’s conduct as alleged in the complaint constituted a violation of the Governmental Conduct Act and was either unintentional or for good cause, then the hearing officer shall give the respondent 10 days to correct the violation, pursuant to Subsection B of Section 10-16-13.1 NMSA 1978, before taking any action under Subsection N of 1.8.3.14 NMAC. Q. If the hearing officer finds by a preponderance of the evidence that the respondent’s conduct as alleged in the complaint does not constitute a violation of any law within the jurisdiction of the commission, the hearing officer, in a written decision, shall dismiss the complaint and inform the complainant of their right to appeal to the commission. R. A party may request copies of evidence considered by the hearing officer or a copy of the audio recording of the hearing by submitting a written request to the director. The director may charge a reasonable fee for copies made, consistent with its fee schedule under the Inspection of Public Records Act dismiss the complaint and inform the complainant of their right to appeal to the commission. R. A party may request copies of evidence considered by the hearing officer or a copy of the audio recording of the hearing by submitting a written request to the director. The director may charge a reasonable fee for copies made, consistent with its fee schedule under the Inspection of Public Records Act. The director may also require the requesting party to submit a new, sealed computer storage device, such as a compact disc, dvd disc, or usb drive, or other tangible device for copying of any audio or video recording that is part of the administrative record. Every party is responsible for paying the cost of any transcription of the audio recording. [1.8.3.13 NMAC-N, 01/01/2020; Rn 1.8.3.14 NMAC & A, 09/14/2021; A, 7/1/2023] 1.8.3.15 APPEALS; ENFORCEMENT: A. The complainant or respondent may appeal the final decision of the hearing officer within 30 days of the issuance of the decision to the full commission by filing a notice stating: (1) each party taking the appeal and each party against whom the appeal is taken; (2) the name, address, telephone number and email address of counsel for the appellant; (3) the decision or part of a decision from which the party appeals; and (4) the specific grounds for the appeal, including specific references to any evidence or law interpreted by the hearing officer. (5) If the hearing officer issued a final decision on a complaint that was initiated by the commission under Paragraph (1) of Subsection C of Section 10-16G-5 NMSA 1978 and Subsection E of 1.8.3.9 NMAC, or where the general counsel has intervened under Section G of 1.8.3.14 NMAC, then the general counsel may appeal the hearing officer’s decision within 30 days of the issuance by filing a notice stating the information required in subsections (1) through (4) above. B. For the purpose of this rule, briefing time shall commence from the date the appellant files a notice of appeal to the full commission where the general counsel has intervened under Section G of 1.8.3.14 NMAC, then the general counsel may appeal the hearing officer’s decision within 30 days of the issuance by filing a notice stating the information required in subsections (1) through (4) above. B. For the purpose of this rule, briefing time shall commence from the date the appellant files a notice of appeal to the full commission. Unless otherwise provided for by the commission, (1) The appellant shall file and serve a brief in chief within 15 days; (2) The appellee shall file and serve an answer brief within 15 days after service of the brief of the appellant; and (3) Neither the brief in chief nor the answer brief shall exceed 10 pages. C. The commission shall schedule oral arguments, if requested by either party or ordered by the commission within sixty days of the notice of appeal. D. Any person may timely file an amicus brief, not to exceed ten pages, with the director for consideration by the commission. E. The commission shall review the whole record of the proceeding and shall, within 180 days of receiving the notice of appeal, issue its decision upholding or reversing the decision of the hearing officer. The commission may reverse all or part of the hearing officer’s decision and remand the matter to the hearing officer for further proceedings. (1) If a hearing officer dismisses a complaint, pursuant to Subsection B of 1.8.3.13 NMAC, following the general counsel’s determination that the complaint is frivolous or unsubstantiated, then the complainant has no right to an appeal of that dismissal to the commission. If the general counsel does not determine that the complaint is frivolous or unsubstantiated but the hearing officer dismisses the complaint for lack of probable cause, the complainant may appeal that decision to the commission the general counsel’s determination that the complaint is frivolous or unsubstantiated, then the complainant has no right to an appeal of that dismissal to the commission. If the general counsel does not determine that the complaint is frivolous or unsubstantiated but the hearing officer dismisses the complaint for lack of probable cause, the complainant may appeal that decision to the commission. 1.8.3 NMAC 11 (2) If the hearing officer decides that a complaint is supported by probable cause pursuant to Subsection G of Section 10-16G-10 NMSA 1978, the respondent has no right to appeal that decision to the commission. F. A party may seek review of the commission’s final decision by filing for a petition of writ of certiorari pursuant to Rule 1-075 NMRA. In any action to review a final decision by writ of certiorari, or, if no petition for writ of certiorari has been timely filed, in a court action in the judicial district where the defendant resides, the commission may move for an order enforcing the commission’s final decision pursuant to Subsection F of Section 10-16G-9 NMSA 1978.