N.M. Admin. Code § 1.12.21.13

Current through Register Vol. 35, No. 24, December 23, 2024

Section 1.12.21.13 - CHALLENGES AND DISPUTES

These rules apply when a person seeks to challenge any action or inaction authorized, taken, required or governed by these rules, by a funding source or by any state or federal law that governs a program and is not, by law or agreement, within the exclusive subject matter jurisdiction of another dispute resolution process or forum.

A.Roles. Any challenge brought pursuant to these rules shall be determined by the secretary or the secretary's designee. If a person challenges an action taken directly by the secretary, or an action allegedly owed directly by the secretary, the secretary shall be recused and the OBAE director shall determine the matter.

(1) The secretary or director may appoint a hearing officer or special master to take evidence, conduct proceedings, including hearings, and make recommended findings, conclusions and decisions.

(2) An appointed hearing officer or special master may be a council member, employee of DoIT, or contractor.

B.Parties. The only parties to a challenge brought pursuant to these rules shall be the person who submits the challenge, who shall be referred to as a "petitioner", and the sponsoring body whose action or inaction is the subject of the challenge. These rules do not establish a forum or provide a process for resolving disputes between private parties.

C.Initiation. A challenge shall be initiated by submitting a complete challenge form to the DoIT law clerk, or that person's designee. The challenge form, including the law clerk's contact e-mail, is available on DoIT's website. A person who does not have access to e-mail may contact DoIT's law clerk by phone to arrange for an alternative filing method. A person who submits a challenge shall be referred to as the "Petitioner".

D.Time. Unless a sponsoring body specifies a different time limit, a person shall have no more than 21 days from when that person received actual or constructive notice of the act, or failure to act, that is the subject of a challenge to submit the challenge form. For good cause, upon request or sua sponte, and when doing so would not interfere with program objectives or funding source directions, a sponsoring body may extend this time limit.

E.Standing. Only a person who is aggrieved by the action or inaction that is the subject of a challenge has standing to make the challenge. For purposes of this requirement, a person is aggrieved if the action or inaction could directly and immediately have an adverse impact on a property interest of the person.

F.Real party in interest. A challenge shall only be made by a real party in interest, and the petitioner's interest must be apparent from the information in the challenge form.

G.Representation. An individual petitioner may, but is not required to, be represented by legal counsel in connection with a challenge. A petitioner who is a corporate entity shall be represented by legal counsel of its choosing, and at its expense, in connection with a challenge.

H.Procedures. Within ten days of receiving a challenge, the secretary shall issue a process order to govern the ensuing proceedings through decision. The time limits, processes and rules of evidence that govern a challenge shall be specified by the secretary through a general order, through the process order or through a combination of such orders.

(1) The procedures and rules of evidence that apply to a particular challenge shall satisfy the minimum procedural due process requirements pertaining to the right or interest that is at issue.

(2) Time limits and deadlines shall be commensurate with the exigencies of a particular challenge.

(3) A general order or process order may adopt by reference any established rule of procedure or evidence followed by any other New Mexico agency, state court or New Mexico federal court.

(4) For good cause, on motion or sua sponte, a hearing officer may waive, amend or supplement any provision in the applicable process order, but not of a general order.

(5) Every general order shall become effective when posted on DoIT's website.

(6) A process order shall provide a link to any general order applicable to a proceeding.

I.Decision. The secretary or director, as applicable, shall issue a final decision and order within the time specified in the process order.

(1) A decision and order shall include findings of fact, statements of law and conclusions sufficient to support judicial review.

(2) Findings of fact shall be supported by evidence of record, or administratively noticed. Unless due process requirements mandate otherwise, a finding of fact may be based on hearsay evidence that is admissible under the rules of evidence that apply in New Mexico state courts, or that is otherwise deemed reliable.

(3) The secretary or director, as applicable, shall not reject a finding of fact proposed by a hearing officer without reviewing all evidence in the record of the proceedings.

(4) A decision and order shall be deemed final upon service of the parties to the proceeding.

(5) If the secretary or director, as applicable, fails to timely render a decision and order, the challenge shall be deemed rejected as of the date the decision and order was due.

J.Service. Service, when required, shall be accomplished by e-mail, if the required recipient has provided DoIT with an e-mail address, or otherwise by regular, first class, mail.

(1) DoIT's law clerk shall be responsible for completing service when service is required by DoIT, the secretary, the director, a hearing officer or a special master.

(2) The process order shall be served on the petitioner and any other party to the proceeding.

(3) A party to a proceeding shall contemporaneously serve each other party to a proceeding a copy of any correspondence, pleading or evidence submitted to DoIT, the secretary, the director, the hearing officer or the special master in connection with a proceeding governed by a process order.

(4) A party to a proceeding is not required to prepare or file certificates of service. Every party to a proceeding shall maintain a contemporaneous service log using the form available on DoIT's website.

Within five days of the issuance of a final decision and order, each party shall file with DoIT's law clerk a copy of that party's service log and provide a copy of same to every other party. The service log(s) shall be considered part of the record of the proceeding.

K.Records. DoIT's law clerk is the custodian of all filings and records pertaining to a proceeding.

(1) All filings shall be submitted to DoIT's law clerk.

(2) DoIT's law clerk shall be copied on any correspondence pertaining to a proceeding submitted to the secretary, the director, a hearing officer or a special master.

(3) Failure to copy or serve DoIT's law clerk when required shall result in the exclusion of the omitted material from consideration and from the record of the proceedings.

L.Intervention. Any person who has a property interest that may be adversely impacted by the decision on a challenge may apply for leave to intervene in the challenge proceeding. An application to intervene shall be made within 10 days from when the applicant received actual or constructive notice of a challenge.

M.Confidentiality. Information or data submitted to a sponsoring body pursuant to an approved confidentiality request shall not be disclosed to, or used by, any party to a challenge proceeding unless the owner of the confidential information waives confidentiality.

N.M. Admin. Code § 1.12.21.13

Adopted by New Mexico Register, Volume XXXIV, Issue 07, April 11, 2023, eff. 4/11/2023