HOUSE BILL 301
50th legislature - STATE OF NEW MEXICO - second session, 2012
INTRODUCED BY
Nate Gentry
AN ACT
RELATING TO EXECUTIVE ORGANIZATION; ENACTING THE ADMINISTRATIVE HEARINGS ACT; CREATING THE ADMINISTRATIVE HEARINGS OFFICE; PROVIDING POWERS AND DUTIES; PRESCRIBING QUALIFICATIONS FOR THE CHIEF HEARING OFFICER AND HEARING OFFICERS; CONSOLIDATING HEARING OFFICERS FROM DEPARTMENTS AND OTHER STATE AGENCIES; PROVIDING FOR THE TRANSFER OF FUNCTIONS, PERSONNEL, MONEY, APPROPRIATIONS, PROPERTY, CONTRACTUAL OBLIGATIONS AND STATUTORY REFERENCES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
SECTION 1. SHORT TITLE.--This act may be cited as the "Administrative Hearings Act".
SECTION 2. PURPOSE.--The purpose of the Administrative Hearings Act is to consolidate under one administrative hearings office the hearing officers and hearing functions of all executive state agencies subject to that act.
SECTION 3. DEFINITIONS.--As used in the Administrative Hearings Act:
A. "administrative hearing" means a proceeding before an agency, including ratemaking and licensing, in which legal rights, duties or privileges of a party are required by law or rule of an agency to be determined by an agency after an opportunity for a trial-type hearing;
B. "agency" means any agency, board, commission, department, institution or officer of state government except the judicial and legislative branches of the state government, the public regulation commission and the workers' compensation administration;
C. "chief" means the chief hearing officer; and
D. "office" means the administrative hearings office.
SECTION 4. ADMINISTRATIVE HEARINGS OFFICE--CREATED--ADMINISTRATIVE ATTACHMENT--CHIEF AND HEARING OFFICERS--APPOINTMENT--QUALIFICATIONS--OATH OF OFFICE--FULL-TIME EMPLOYMENT.--
A. The "administrative hearings office" is created and is administratively attached to the regulation and licensing department.
B. The head of the office is the "chief hearing officer". By August 1, 2012, the governor shall appoint an interim chief from among current hearing officers who are licensed to practice law in New Mexico. Beginning July 1, 2013 and thereafter, the chief shall be appointed by the governor, with the advice and consent of the senate, for a four-year term. A chief may serve more than one term with the advice and consent of the senate.
C. Except for the interim chief, at the time of appointment, the chief shall be licensed to practice law in New Mexico and have at least twelve years' experience as a practicing attorney, with at least ten years' experience in administrative law.
D. Hearing officers are subject to the provisions of the Personnel Act. At the time of employment, a hearing officer shall be licensed to practice law in New Mexico and have at least five years' experience as a practicing attorney. The chief may give preference to candidates with administrative law experience and establish other minimum qualifications and preferences.
E. The chief and other hearing officers shall:
(1) take the oath of office required by the constitution of New Mexico. Once a code of conduct is adopted, the chief and all other hearing officers shall sign the code of conduct and file it with the office. The code of conduct shall be reviewed and signed annually; and
(2) devote themselves full time to the duties of the office and shall not engage in the private practice of law.
F. The Administrative Hearings Act shall not apply to hearing officers or hearing examiners who are funded in whole or in part by the federal government or to administrative hearings funded in whole or in part by the federal government.
SECTION 5. CHIEF HEARING OFFICER--POWERS AND DUTIES.--
A. The chief:
(1) shall supervise and manage the office;
(2) shall employ hearing officers and other staff as necessary to carry out the duties of the office;
(3) shall assign hearing officers in any case referred to the office, giving preference to hearing officers with subject matter expertise and taking into consideration possible conflicts of interest;
(4) shall ensure the decisional independence of each hearing officer;
(5) shall adopt and promulgate a code of conduct for hearing officers; and
(6) may enter into contracts.
B. To better manage resources and limit costs to the office, a contract attorney shall not act as a hearing officer unless authorized by the chief.
SECTION 6. CONDUCT OF ADMINISTRATIVE HEARINGS--AGENCY COOPERATION.--
A. Every administrative hearing shall be conducted as provided by the law applicable to the case being heard. Except for the rules relating to discovery, the technical rules of evidence and the Rules of Civil Procedure for the District Courts do not apply to administrative hearings before the chief or hearing officers. The rules relating to discovery shall only apply to the parties to the hearings.
B. When the office accepts a request for a hearing officer, the requesting agency shall take no further action with respect to the matter, except as party litigant. Nothing in this subsection shall be construed to prevent a termination or modification of the proceeding by an agency prior to the issuance of a final decision or recommendation by the hearing officer.
C. Judicial review of an agency decision reviewed by the office shall be in accordance with the law applicable to the case being heard.
D. All agencies shall cooperate fully with the office in the discharge of the office's duties.
E. Except as otherwise provided in this section, all hearings for which a hearing officer may or shall be appointed, as required by law or rule of an agency, shall be conducted by the office.
F. A rulemaking proceeding may be subject to the Administrative Hearings Act at the request of an agency head.
G. The Administrative Hearings Act shall not apply if an agency head hears the administrative hearing without delegation or assignment to a hearing officer.
SECTION 7. TEMPORARY PROVISION--TRANSFER OF PERSONNEL, FUNCTIONS, APPROPRIATIONS AND PROPERTY--CONTRACTUAL OBLIGATIONS--STATUTORY REFERENCES.--
A. As used in this section, "agency" means any agency, board, commission, department, institution or officer of state government except the judicial and legislative branches of the state government, the public regulation commission and the workers' compensation administration.
B. On July 1, 2012, all positions the primary duty of which is to preside over and issue final or proposed decisions in administrative hearings or the supervision of such positions, as determined by the state personnel director, and support staff for those positions shall be transferred to the administrative hearings office and the incumbents in the transferred positions shall become employees of the administrative hearings office; provided, however, that positions funded wholly or in part by the federal government shall not be transferred to the office.
C. On July 1, 2012, all functions, records, furniture, equipment and other property, appropriations and money that the state budget director determines to be attributable to agency hearing officers, hearing examiners and support staff for those positions to be transferred to the administrative hearings office shall be transferred to the administrative hearings office. The administrative hearings office personnel and property shall not occupy a new physical office location until practicable.
D. On July 1, 2012, all contractual obligations of an agency that the state budget director determines to be attributable to hearing officers, hearing examiners and support staff for those positions transferred to the administrative hearings office shall be transferred to the administrative hearings office.
E. All agency hearing officers and hearing examiners transferred to the administrative hearings office pursuant to this section shall be classified as hearing officers, regardless of the minimum qualifications listed in Subsection E of Section 4 of the Administrative Hearings Act.
F. On July 1, 2012, all references in the law to agency hearing officers or hearing examiners subject to the Administrative Hearings Act shall be deemed to be references to agency hearing officers as provided by the Administrative Hearings Act and all references in the law to administrative hearings subject to the Administrative Hearings Act shall be deemed to be references to administrative hearings as provided by the Administrative Hearings Act. Administrative hearings shall be conducted by the administrative hearings office pursuant to the provisions of the Administrative Hearings Act.
SECTION 8. EFFECTIVE DATE.--The effective date of the provisions of this act is July 1, 2012.
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