N.M. Admin. Code § 20.11.80.12

Current through Register Vol. 35, No. 20, October 22, 2024

Section 20.11.80.12 - GENERAL PROVISIONS

A. Applicability of rules of civil procedure and rules of evidence: In the absence of a specific provision in 20.11.80 NMAC governing an action, the 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 director.

B. Liberal construction: 20.11.80 NMAC shall be liberally construed to carry out its purpose.

C. Director and hearing officer - powers and duties - disqualification and withdrawal:

(1) Director: The director shall exercise all powers and duties authorized and required by the act and 20.11.80 NMAC that are not otherwise delegated by 20.11.80 NMAC to the hearing officer or the hearing clerk. The director or hearing officer may specify procedures in addition to, or that vary from, the procedures provided in 20.11.80 NMAC in order to expedite the efficient resolution of the action or to avoid obvious injustice.

(2) Hearing officer: The director shall appoint a hearing officer or hearing officers to perform the functions described in Subparagraph (b) of Paragraph (2) of Subsection C of 20.11.80.12 NMAC.

(a) Qualifications and disqualifications: A hearing officer may be an independent contractor, a hearing officer at the city of Albuquerque office of administrative hearings or similar successor city organizational unit, an employee of the department who is not air program staff, or an employee of a different city department. A hearing officer shall not be:

(i) an employee of or staff for the air program;

(ii) an employee of or staff for the department unless employed by the department as a hearing officer;

(iii) a person who has a personal bias or prejudice concerning a party, has personal knowledge of disputed facts concerning the proceeding, is related to a party within the third degree of relationship or has a financial interest in the proceeding;

(iv) a person who has performed prosecutorial or investigative functions in connection with the matter at issue in the proceeding; or

(v) an officer, director or trustee of a party to the proceeding.

(b) Hearing officer functions: The hearing officer shall exercise all powers and duties required or delegated by the director pursuant to the act and 20.11.80 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 to maintain order and the efficient, fair and impartial adjudication of issues arising in proceedings governed by 20.11.80 NMAC, including, but not limited to:

(i) conducting hearings authorized by 20.11.80 NMAC;

(ii) ruling upon motions, procedural requests and offers of proof, and issuing all necessary orders;

(iii) administering oaths and affirmations, examining witnesses and admitting or excluding evidence;

(iv) requiring parties to attend conferences for the settlement or simplification of issues, or for expediting proceedings;

(v) imposing sanctions, subject to review and approval by the director, on parties who cause undue delay or fail to cooperate in the proceeding; and

(vi) filing with the hearing clerk all original documents received by the hearing officer.

(3) Director and hearing officer; disqualification or withdrawal:

(a) The director may not perform functions authorized by 20.11.80 NMAC regarding any matter in which the director:

(i) has a personal bias or prejudice concerning a party, has personal knowledge of disputed facts concerning the proceeding, is related to a party within the third degree of relationship or has a financial interest in the proceeding;

(ii) has performed prosecutorial or investigative functions in connection with the matter at issue in the proceeding; or

(iii) is an officer, director or trustee of a party to the proceeding.

(b) The director shall not be disqualified solely because the director has been briefed on the matter before a compliance order is issued.

(c) A party may request the withdrawal or disqualification of the director or the hearing officer by filing a motion that includes a reason for disqualification listed in either Subparagraph (a) of Paragraph (3) of Subsection C of 20.11.80.12 NMAC or Subparagraph (a) of Paragraph (2) of Subsection C of 20.11.80.12 NMAC, as applicable. The motion shall be filed within 10 days after the later of the date the compliance order has been docketed or the hearing officer has been designated, or, if a new director or new hearing officer is appointed, within 10 days after the new director takes office or the new hearing officer is appointed, as applicable.

(d) A motion seeking withdrawal or disqualification of the director or the hearing officer shall be ruled upon by the director. If the director withdraws or is disqualified, the duties of the director shall be assumed by an associate director, deputy director or other person who would not be subject to disqualification and does not directly oversee the air program.

D. Recording of hearings: All hearings on the merits shall be recorded by a court reporter unless otherwise directed by the director or hearing officer. The recording made by the court reporter will be the sole official recording of the hearing. The hearing clerk shall make the transcription part of the record proper, which is a public record except as otherwise provided by law.

E. Computation and extension of time:

(1) Computation of time: In computing any period of time prescribed or allowed by 20.11.80 NMAC, except as otherwise specifically provided, the day of the event from which the designated period begins to run shall not be included. The last day of the computed period shall be included, unless it is a Saturday, Sunday or legal city of Albuquerque holiday, in which event, the time shall be extended until 5:00 p.m. on the next day that is not a Saturday, Sunday or legal city of Albuquerque holiday. Whenever a party must act within a prescribed period after service upon that party and service is by mail, three days shall be added to the prescribed period. The three-day extension does not apply to a deadline established by the act.

(2) Extensions of time: When a motion is filed, the hearing officer or director, as appropriate for the stage of the proceeding at the time the motion is filed, may grant an extension of time for filing a document or may grant continuance of a hearing. No extension shall be granted regarding a deadline established by the act.

F. Ex parte contact. Between the time a compliance order has been issued and the time the director issues a final order or the request for hearing has been withdrawn, no person shall have ex parte contact with the director or the hearing officer regarding the merits of a pending compliance order or motion filed pursuant to 20.11.80 NMAC. The ex parte restriction established in the immediately-preceding sentence does not apply to the director, the hearing officer or the hearing clerk.

G. Document - filing, service, form and examination:

(1) Filing of documents:

(a) except as otherwise provided, the original of all documents served in the proceeding shall be filed with the hearing clerk; and

(b) the party that files a document shall serve a copy of the document on all other parties. All documents shall be filed at least 15 days before the hearing at which the hearing officer or director will consider the matter unless otherwise ordered by the hearing officer. A certificate of service like the certificate of service shown in Subsection J of 20.11.80.12 NMAC shall accompany each filed document.

(2) Service of Documents: Except as otherwise provided or ordered by the hearing officer, all documents shall be served personally, mailed by express or first class mail, or, if the person being served has agreed in writing, sent by facsimile or by electronic transmission. Service by mail is complete when the document is mailed. Service by facsimile or electronic transmission is accomplished when transmission of the document is complete. If the person being served is represented by an attorney, service shall be made on the attorney. Delivery receipts shall be kept as proofs of service and shall be produced immediately upon the request of the hearing officer, the director or another party.

(3) Form of documents:

(a) If feasible, all documents in paper form shall be prepared on 8 1/2 inch x 11 inch white paper, printed double-sided. Where appropriate, the first page of every document shall include the caption or heading required by Subsection J of 20.11.80.12 NMAC. The contents, except quotations and footnotes, shall be double spaced.

(b) The original of each document, except exhibits, shall be signed by the party or the party's attorney or other representative, and shall include the address, e-mail address if any, and telephone number of the person who signed. The signature constitutes a certification that the signer has read the document; that, to the best of the signer's knowledge, information and belief, there are good grounds to support the document; and that, except for motions for extension of time, the document is not interposed or submitted for purposes of delay.

(c) A notice of service that is required by 20.11.80 NMAC shall be deemed adequate if made to the most recent address provided by the person upon whom service is made.

H. Filing and service of documents issued by director or hearing officer: Every document issued by the director and the hearing officer shall be filed with the hearing clerk. The hearing clerk shall promptly serve copies of the document upon all parties.

I. Examination of documents filed: Pursuant to the New Mexico Inspection of Public Records Act at Chapter 14, Article 2 NMSA 1978 and all applicable city of Albuquerque ordinances and administrative instructions, during normal business hours and subject to the provisions of law restricting public disclosure of confidential information, any person may inspect and copy any document filed in any proceeding pursuant to 20.11.80 NMAC. The documents shall be made available by the hearing clerk, as authorized.

J. Samples - caption; certificate of service:

CITY OF ALBUQUERQUE

ENVIRONMENTAL HEALTH DEPARTMENT

CITY OF ALBUQUERQUE

ENVIRONMENTAL HEALTH DEPARTMENT

AIR QUALITY DIVISION

Complainant,

v.

Administrative Compliance Order No. [year] -[indiv. order #]

[ Note: Confirm the compliance order number with the hearing clerk before filing.]

[NAME OF RESPONDENT],

Respondent.

[TITLE OF DOCUMENT: COMPLIANCE ORDER, MOTION FOR ..., etc.]

By: ________________________________

[Signature]

____________________________________

[ Print or type name]

Title: _______________________________

Address: ____________________________

Telephone Number: _______ ____________

E-mail: _________________ ____________

CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing [insert: name of document] was [mailed by first class mail/express mail/hand delivered/ sent by facsimile/ sent by electronic transmission] to [insert: names of persons upon whom service was made: attorney/party] on this ____ day of [month], 20___.

[List names of persons served:]

By ______________________________

[Signature of person certifying service]

_________________________________

[ Print or type name]

N.M. Admin. Code § 20.11.80.12

20.11.80.12 NMAC - N, 8/15/11