N.M. Admin. Code § 22.600.2.16

Current through Register Vol. 35, No. 21, November 5, 2024

Section 22.600.2.16 - EX PARTE COMMUNICATIONS

A. A hearing officer on an assigned case may not engage in any prohibited ex parte communications about the substantive issues with either party on any matter before the administrative hearings office. A prohibited 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 a prohibited 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.

B. Where circumstances require it, ex parte communications for procedural, administrative, or emergency purposes that does not address the substantive matters or issues on the merits are permitted if the hearing officer reasonably believes that no party will gain an advantage as a result of the non-substantive ex parte communication and the hearing officer makes provisions to promptly notify all parties of the substance of the ex parte communication.

C. As part of the deliberative process, a hearing officer may consult with other hearing officers, except those who have previously been disqualified from the matter, and support personnel of the administrative hearings office about a pending matter. Such communication does not amount to a prohibited ex parte communication.

D. In the event a hearing officer receives an unsolicited ex parte communication, such as but not limited to the receipt of an email or a facsimile, the hearing officer receiving the unsolicited communication shall promptly forward a copy of the communication to the opposing party and admonish the sending party to comply with the ex parte communication prohibition in all future communications. An unsolicited ex parte communication does not constitute a prohibited ex parte communication unless the assigned hearing officer deems that the communication caused a genuine advantage to the non-complying, submitting party.

E. The chief hearing officer or designated staff, may make inquiries about the status of a scheduled case or cases, or the conduct of a case or cases that have already occurred, with either or both parties as part of the management of the docket, staff, and state resources. This communication does not amount to prohibited ex parte communication.

F. With consent of the parties, the hearing officer may confer separately with the parties or their representatives in an effort to mediate or settle pending matters. With consent, such communication does not amount to a prohibited ex parte communication.

G. Absent providing administrative notice to the parties with an opportunity for the parties to respond or object, or receiving prior consent from the parties to do so, a hearing officer shall not investigate facts that are reasonably in dispute in a matter independently of what has been presented on the record. This does not preclude a hearing officer from researching the applicable law relevant to the facts presented regardless of whether such legal authority was cited by either party. Nor does it preclude the hearing officer from taking administrative notice of facts that cannot reasonably be disputed.

H. A hearing officer may engage in ex parte communications when expressly authorized by law to do so.

I. So long as no confidential or privileged information about the case or the identities of the parties is disclosed, a hearing officer may consult with other hearing officers, other staff, ethics advisory committees, outside counsel, judges who will not serve in an appellate capacity in the matter, mentors, or other legal experts concerning the hearing officer's obligations and compliance with provisions of this code without disclosing such communication to any person or party.

N.M. Admin. Code § 22.600.2.16

Adopted by New Mexico Register, Volume XXIX, Issue 02, January 30, 2018, eff. 2/1/2018