TITLE 10 PUBLIC SAFETY AND LAW ENFORCEMENT
CHAPTER 29 LAW ENFORCEMENT ACADEMY
PART 1 GENERAL PROVISIONS
10.29.1.1 ISSUING AGENCY: - Department of Public Safety, New Mexico Law Enforcement Academy, 4491 Cerrillos Road, Santa Fe, New Mexico 87507
[10.29.1.1 NMAC - Rp, 10.29.1.1 NMAC, 11/15/16; A, 06/27/2017]
10.29.1.2 SCOPE: All police officers, telecommunicators, and law enforcement agencies in the state of New Mexico.
[10.29.1.2 NMAC - Rp, 10.29.1.2 NMAC, 11/15/16]
10.29.1.3 STATUTORY AUTHORITY: Section 29-7-3 NMSA 1978, (Repl. Pamp. 1994), Section 29-7-4 NMSA 1978, (Repl. Pamp. 1994), Section 29-7-5 NMSA 1978, (Repl. Pamp. 1994), Section 10-15-1 NMSA 1978, (Repl. Pamp. 1995), Section 29-7-6 NMSA 1978, (Repl. Pamp. 1994), Section 29-7-13 NMSA 1978, (Repl. Pamp. 1994), Section 40-5A-1 to 40-5A-13 NMSA 1978, (Cum. Supp. 1996).
[10.29.1.3 NMAC - Rp, 10.29.1.3 NMAC, 11/15/16]
10.29.1.4 DURATION: Permanent.
[10.29.1.4 NMAC - Rp, 10.29.1.4 NMAC, 11/15/16]
10.29.1.5 EFFECTIVE DATE: November 15, 2016, unless a later date is cited at the end of a section.
[10.29.1.5 NMAC - Rp, 10.29.1.5 NMAC, 11/15/16]
10.29.1.6 OBJECTIVE: The objective of Part 1 is to establish procedures and policies for conducting meetings of the law enforcement academy board, establish criteria for admission to the law enforcement academy consistent with statutory requirements for certification, identify grounds for the suspension, revocation or denial of certification consistent with statutory requirements, establish administrative procedures for the denial, suspension or revocation of a police officer’s or telecommunicator’s certification, require Parental Responsibility Act compliance and identify the appropriate procedures in the event of non-compliance.
[10.29.1.6 NMAC - Rp, 10.29.1.6 NMAC, 11/15/16]
A. “HSD” means the New Mexico human services department.
B. “Statement of compliance” means a certified statement from HSD stating that an individual is in compliance with a judgment and order for support.
C. “Statement of non-compliance” means a certified statement from HSD stating than an individual is not in compliance with a judgment and an order for support.
D. “Moral turpitude” means any criminal act done contrary to justice, honesty, or with disregard to one’s responsibilities to society in general.
[10.29.1.7 NMAC - Rp, 10.29.1.7 NMAC, 11/15/16]
10.29.1.8 REGULATIONS, POLICIES AND PROCEDURES FOR CONDUCTING THE BUSINESS OF THE LAW ENFORCEMENT ACADEMY BOARD:
A. Duties of board officers:
(1) The attorney general shall serve as the chairman of the board and shall preside at all meetings and shall be charged with the responsibility of preserving order and decorum and enforcing these regulations. The chairman shall execute all of those duties commonly performed by a presiding officer.
(2) The vice-chairman shall act in the capacity of chairman in the absence or unavailability of the chairman.
B. Election of vice-chairman: The board shall elect a vice-chairman at the first board meeting of each calendar year.
C. Academy director: The director of the law enforcement academy shall be appointed by the board pursuant to Section 29-7-4 NMSA 1978, (Repl. Pamp. 1994).
(1) The director shall be the chief executive officer of the academy, and as such, employ necessary personnel; act as executive secretary to the board; issue appropriate certificates to graduates of the academy; and perform all other acts necessary and appropriate to carry out his duties. He shall supervise the operation of the academy as its chief executive officer and shall administer the agency subject to the direction of the board through its official proceedings. He shall perform all duties delegated to the director by law and those customarily exercised by the chief executive officer of a state agency.
(2) The board may direct the director to implement, carry out, or finalize a particular policy or agreement. When the board has so directed; the director is authorized to sign for the board those contracts and other documents customarily signed by the chairman and secretary of the board.
(3) As secretary of the board, the director is responsible for the review and certification of the minutes of the board.
D. Meetings: Regular meetings of the board will be held at least four times a year at a time and place to be designated by the chairman.
(1) A majority of the board members present shall constitute a quorum for the transaction of business at any regular or emergency meeting. The transaction of the board’s business shall be by the vote of the majority of its members present at the meeting. The chairman may vote on any item of business before the board.
(2) If a number of board members less than a quorum shall assemble for any meeting, they may postpone or adjourn that meeting until such time as a quorum can be obtained and notice again given in accordance with the rules herein set forth.
(3) If prior to the commencement of a regular or emergency meeting, the director has received notices that the majority of the members of the board will not be able to attend the meeting, the director may cancel the meeting and is instructed to attempt to give notice of cancellation of the meeting to all board members and the news media.
(4) All meetings of the board shall be open to the public except that the board may exclude the public for the portion of the meeting in which the subject matter being discussed in an adjudicatory matter, a personnel matter or the issuance, suspension, renewal or revocation of a certification, or as otherwise authorized by the New Mexico Open Meetings Act.
(5) The board may request that persons having business before the board, in addition to providing written information for the board to review, appear personally before the board to discuss their item of business.
(6) All meetings of the board that are open to the public shall allow for a portion of the meeting time to be designated for public comment.
(7) The order of business of the board at regular meetings shall be as follows:
(a) roll call;
(b) approval of agenda;
(c) approval of minutes;
(d) old business;
(e) new business;
(f) designation of place of next meeting; and
(8) The director shall prepare an agenda for each meeting and shall be guided in his preparation of his agenda by consultation with the chairman of the board and the director’s staff.
(9) The agenda for an emergency meeting shall specify the items of business to be considered by the board at that meeting. No business other than that specifically stated on the agenda for that emergency meeting shall be considered. The subject matter to be considered at any emergency meeting shall be included in that notice given by the director to the members of the board as required in these regulations and the New Mexico Open Meetings Act.
(10) All meetings shall be called to order and business of the meeting conducted by the chairman of the board, or in his absence, the vice-chairman. Should both the officers of the board be absent from the meeting, if a quorum is present, the board shall designate one of its members to assume the responsibilities of the chairman for that meeting.
(11) The board shall conduct its meetings in a manner consistent with Roberts Rules of Order or other accepted parliamentary procedure as instituted by the chair or otherwise determined by the board. In the event a question as to the proper method of procedure arises in any meeting, the chairman is vested with authority to resolve such question and his decision shall be final.
(12) The director shall send to all board members at least one week prior to the regular meeting date, a copy of the agenda for the regularly scheduled meeting, any documents or other items of information that may assist the board members in preparing for the upcoming meeting, and a copy of all petitions received by the director.
(13) The minutes of each board meeting shall comply with requirements of the Open Meetings Act. The director or his staff are directed to compile the minutes of the meeting from stenographic notes of the meeting, a tape recording of the meeting, or both. After the board approves the minutes of the meeting, the stenographic notes or tape recording of the meeting may be destroyed. The approved minutes of a meeting shall constitute the official record of business transacted at the meeting. The approved minutes of the board meeting shall be preserved in a book of minutes and shall be available for public inspection during normal working hours.
(1) All persons, other than members of the board or its director, desiring to place before the board any item for discussion or item of business for the board’s consideration may do so by submitting to the director as early as possible, and no later than 10 days in advance of the regular meeting, a written petition containing:
(a) a request that the item of business be placed on the agenda of the next regularly scheduled meeting;
(b) a description of the general subject matter of the item of business;
(c) the action that the petitioner desires the board to take on the item of business; and
(d) the reason why the petitioner feels the action proposed by the petitioner is appropriate.
(2) The director may, in his own discretion or at the direction of the chairman, place any agenda item requested by a timely petition on the agenda of the next regular meeting and notify the petitioner in writing of the time, date, and place of the meeting. The decision as to whether or not to place a petition item on the agenda, and the amount of time allowed to present on the item, may be decided by the director or the chairman, and that decision shall be final.
(3) All petitions received by the director shall remain on file in the office of the board and subject to public inspection.
(1) The board may alter and amend these regulations from time to time as it deems necessary. Alteration or amendment of these regulations may be accomplished by a majority vote of the board after a public hearing for which notice of not less than 30 days has been posted to the board’s website and at least one newspaper of general circulation, and provided to any interested parties who have submitted a written request for such notice. The notice shall also state where interested persons may secure copies of any proposed regulations. Changes to the regulations shall comply with requirements under the State Rules Act, Chapter 14, Article 4 NMSA 1978.
(2) At the hearing, the board shall allow all interested persons reasonable opportunity to submit data, views or arguments orally or in writing, and to examine witnesses testifying at the hearing. Any person heard or represented at the hearing shall be given written notice of the actions of the board. The board may designate a hearing officer to take evidence in the hearing. A record shall be made of all proceedings at the hearing.
(3) The board may direct the director to develop proposals for regulations and other guidelines as it feels are necessary for the fair and orderly conduct of the board’s responsibilities.
(4) The board shall consider proposed revisions as well as any public comment received prior to adopting any changes. The board shall provide rationale and justification for its decision either through statements made on the record during a public meeting or in a written order.
(1) In computing any period of time prescribed or allowed by these regulations, the day of the act or event from which the designated period of time begins to run shall not be included. The last day of the period so computed shall be included unless it is a Saturday or Sunday or legal holiday, in which event the period runs until the end of the next day which is not a Saturday, Sunday or legal holiday. For purposes of this rule, a legal holiday shall include any day during which state offices are closed for any consecutive period of three hours or more between 8:00 a.m. and 5:00 p.m.
(2) The law enforcement academy will maintain a database of all certified law enforcement officers and public safety telecommunicators that will reflect a valid mailing address for each individual. It will be incumbent on each certified individual to provide the law enforcement academy a current and valid mailing address for the purpose of board communications, notices of hearing, notices of action, and other official means of notification listed within the scope of this rule. Each certified law enforcement officer and public safety telecommunicator will provide notice of change of address in writing by use of the law enforcement academy LEA-82A form within 30 days of any change of address. If an address change is due to termination, resignation, or retirement of a certified individual from a New Mexico public safety agency, the agency may provide a valid mailing address for the individual on the law enforcement academy LEA-82 form. Reporting and notification to the law enforcement academy of valid mailing address information is a requirement of certification maintenance and is the sole responsibility of the certified individual.
[10.29.1.8 NMAC - Rp, 10.29.1.8 NMAC, 11/15/16; A, 06/27/2017]
10.29.1.9 OPEN MEETINGS ACT REQUIREMENTS:
A. Authority: Any meetings subject to the Open Meetings Act at which the discussion or adoption of any proposed resolution, rule, regulation or formal action occurs shall be held only after reasonable notice to the public; and Subsection D of Section 10-15-1 of the Open Meeting Act requires the board to determine annually what constitutes reasonable notice of its public meetings, which shall be done in the form of a resolution adopted annually pursuant to the Open Meetings Act and these rules. A member of the board may participate in a meeting of the board by conference telephone or other means of communication when it is otherwise difficult or impossible for the member to attend the meeting.
(1) Regular meetings of the board shall ordinarily be held quarterly at a time and place designated in the notice or as otherwise determined by the board. The agenda will be available from the law enforcement academy director whose office is located at 4491 Cerrillos Road, Santa Fe, New Mexico. Notice of regular meetings will be given 10 days in advance of the meeting date.
(2) Special meetings of the board may be called by the chairman or a majority of the members upon 72 hours’ notice.
(3) Emergency meetings of the board are meetings called under circumstances which demand immediate action by the board. Although the board would avoid emergency meetings whenever possible, such circumstances may occasionally arise. Emergency meetings of the board may be called by the chairman or a majority of the members upon 24 hours’ notice, unless shorter notice is necessary as authorized by the Open Meetings Act.
C. Closed meetings: The board may close a meeting to the public if the subject matter of such discussion or action is subject to a listed exemption of the Open Meetings Act. If any board meeting is closed, such closure shall comply with the specific requirements described in the Open Meetings Act.
[10.29.1.9 NMAC - Rp, 10.29.1.9 NMAC, 11/15/16]
10.29.1.10 QUALIFICATIONS FOR ADMISSION TO THE ACADEMY:
A. Qualifications for police officer admission: In accordance with those qualifications enumerated under Section 29-7-6 NMSA 1978, (Repl. Pamp. 1994), the director shall reject applicants for admission to the academy if, after investigation, it is determined that the applicant does not meet the following criteria:
(1) citizenship and age requirements as set forth in Section 29-7-6 NMSA 1978, (Repl. Pamp. 1994);
(2) holds a United States high school diploma or its equivalent;
(3) holds a valid driver’s license;
(4) has not been convicted of or pled guilty to or entered a plea of nolo contendere to any felony charge, or within the three year period immediately preceding his/her application, to any violation of any federal law or state law or local ordinance relating to aggravated assault, theft, driving while intoxicated, controlled substances or other crime involving moral turpitude and has not been released or discharged under dishonorable conditions from any of the armed forces of the United States;
(5) is found, after examination by a licensed physician, to be free from any physical condition which might adversely affect their performance as police officers or prohibit them from successfully completing prescribed basic law enforcement training required by the Law Enforcement Training Act;
(6) is found, after examination by a certified psychologist, to be free of any emotional or mental condition which might adversely affect their performance as police officers or prohibit them from successfully completing prescribed basic law enforcement training required by the Law Enforcement Training Act;
(7) is found to be of good moral character and has not committed any acts constituting dishonesty or fraud; or
(8) is found not to have committed any other acts which would be grounds for denial, revocation, or suspension of certification under the provision of 10.29.1.11 NMAC.
B. Qualifications for telecommunicator admission: In accordance with those qualifications enumerated under Section 29-7C-3 NMSA 1978, the director shall reject applicants for admission to the academy if, after investigation, it is determined that the applicant does not meet the following criteria:
(1) United States citizenship or legal resident and age requirements as set forth in Section 29-7C-3 NMSA 1978;
(2) holds a United States high school diploma or its equivalent from an accredited institution;
(3) has not been convicted of or pled guilty to or entered a plea of nolo contendere to any felony charge, or within the three year period immediately preceding his/her application, to any violation of any federal law or state law or local ordinance relating to aggravated assault, theft, driving while intoxicated, controlled substances or other crime involving moral turpitude and has not been released or discharged under dishonorable conditions from any of the armed forces of the United States;
(4) is found to be of good moral character and has not committed any acts constituting dishonesty or fraud;
(5) is found not to have committed any other acts which would be grounds for denial, revocation, or suspension of certification under the provision of 10.29.1.11 NMAC; or
(6) has been examined by a certified technician and have no uncorrected hearing loss in either ear of greater than 25db at 500, 1000, 2000 Hz, and no more than a 20db loss in the better ear by audiometry, using American National Standards Institute (ANSI 1969) standards.
C. Status: Applicants shall be appraised by the director of the status of their application and any deficiencies therein, in writing, as soon as possible. If an applicant is denied admission, the written order shall include an explanation of the specific facts and circumstances upon which the decision is based and any right to appeal the decision. Decisions of the director may be appealed to the board through the procedures provided for in D. Withdrawal/dismissal enrollment: During the course of an academy program if an enrolled student is unable to complete the full course of academy instruction, whether due to personal absence, withdrawal, or dismissal by the academy, the student will be required to re-enroll and complete the academy course in its entirety regardless of drop date.
[10.29.1.10 NMAC - Rp, 10.29.1.10 NMAC, 11/15/16; A, 06/27/2017]
10.29.1.11 GROUNDS FOR DENIAL, REVOCATION OR SUSPENSION OF POLICE OFFICER OR TELECOMMUNICATOR CERTIFICATION; REPORTING REQUIREMENTS:
A. Authority: In accordance with the provisions of the Law Enforcement Training Act, Section 29-7-13 NMSA 1978, (Repl. Pamp. 1994), the director may seek to deny, suspend or revoke a police officer’s or telecommunicator’s certification, if after investigation and consultation with the employing agency, it is determined that the individual has failed to comply with the provisions of the Law Enforcement Training Act or board regulations concerning qualifications for certification in the state of New Mexico.
B. Arrest or indictment on felony charges; summary suspension:
(1) The director upon being notified that a certified police officer or telecommunicator has been arrested or indicted on any felony charge(s) shall immediately notify the individual of the intent to suspend the certification. The procedures set forth in 10.29.1.12 NMAC shall not apply to the immediate suspension. Notice of the immediate suspension shall be served on the officer or telecommunicator. Upon service of the notice, the individual shall have 15 days to request to be heard at the next meeting of the board. At the meeting, the individual may present evidence, witnesses and argument as to why their certification should not be suspended. The board may deliberate and shall issue a decision on the suspension at the meeting.
(2) The director upon being notified that a police officer or telecommunicator has been convicted on any felony charge(s) shall initiate the disciplinary process pursuant to 10.29.1.12 NMAC.
C. Grounds for discipline of a police officer: The following conduct may constitute grounds for denial, suspension or revocation of certification of a police officer under this rule:
(1) subsequent conviction, entry of plea of guilty or entry of plea of nolo contendere to any felony charge;
(2) subsequent conviction, entry of plea of guilty or entry of plea of nolo contendere to any violation of any federal or state law or local ordinance relating to aggravated assault, theft, driving while intoxicated, controlled substances, or other crime involving moral turpitude;
(3) making false statements or giving any false information to the academy in connection with an application for admission/certification;
(4) committing acts which indicate a lack of good moral character, or which constitute dishonesty or fraud, and which adversely affects an officers’ ability to exercise the duties of a police officer;
(5) committing acts of violence or brutality which indicate that the officer has abused the authority granted to him or her as a commissioned police officer in the state of New Mexico; or
(6) having committed acts which would be grounds for denial of application for admission under 10.29.1.10 NMAC.
D. Grounds for discipline of a telecommunicator: The following conduct may constitute grounds for denial, suspension or revocation of certification of a certified telecommunicator under this rule:
(1) subsequent conviction, entry of plea of guilty or entry of plea of nolo contendere to any felony charge;
(2) subsequent conviction, entry of plea of guilty or entry of plea of nolo contendere to any violation of any federal or state law or local ordinance relating to aggravated assault, theft, driving while intoxicated, controlled substances or other crime involving moral turpitude;
(3) making false statements or giving any false information to the academy in connection with an application for admission/certification;
(4) committing acts which indicate a lack of good moral character, or which constitute dishonesty or fraud, and which adversely affects an telecommunicator’s ability to exercise the duties of a certified telecommunicator;
(5) committing acts which indicate that the telecommunicator has abused the authority granted to a certified telecommunicator in the state of New Mexico; or
(6) having committed acts which would be grounds for denial of application for admission under 10.29.1.10 NMAC.
E. Agency reports of alleged misconduct: Any law enforcement agency employing a police officer or telecommunicator who has committed, or reasonably appears to have committed, any act in violation of these rules shall report such conduct to the director within 90 days after the agency initiates an internal affairs review or is otherwise made aware of the alleged misconduct. A law enforcement agency shall immediately inform the director if an officer or telecommunicator employed by the agency is arrested or indicted on felony charges. Resignation or termination from employment does not relieve the agency from its duty to file a misconduct report with the academy director. Agencies should undertake a timely and thorough investigation to determine whether an allegation of misconduct is sustained. For the purposes of this subpart, “misconduct” is defined as any act listed or otherwise contemplated under 10.29.1.11 NMAC. Violations of agency policy that do not relate to grounds for discipline under board rules are not required to be reported to the director. The director will establish a reporting form to be used in reporting alleged misconduct. An agency’s delay or failure to report alleged misconduct does not prevent the director from filing a separate report or divest the board of jurisdiction to take disciplinary action authorized under the Law Enforcement Training Act.
[10.29.1.11 NMAC - Rp, 10.29.1.11 NMAC, 11/15/16]
10.29.1.12 PROCEDURES FOR DENIAL, SUSPENSION OR REVOCATION OF POLICE OFFICER OR TELECOMMUNICATOR CERTIFICATION:
A. Notice of investigation: In those instances where the director opens an investigation after receiving a report of alleged misconduct, a notice of investigation shall be served on the individual respondent. Such notice shall contain:
(1) a concise statement of the purpose and scope of the investigation;
(2) a description of the acts for which the investigation is sought;
(3) a statement that the respondent has seven calendar days from receipt of the notice of the option to provide a written response or to request an opportunity for an oral response before the director; and
(4) notice describing the disciplinary procedures of the board.
B. Response to notice of investigation; written or oral: A respondent may provide a written response to the director regarding the circumstances surrounding the investigation or may request to meet with the director and provide an oral response.
(1) If a request for an oral response to the notice of investigation is made, the director shall meet with the respondent within 14 calendar days of receipt of such request unless the parties agree in writing to an extension.
(2) A respondent served with a notice of investigation pursuant to this rule may choose a representative to respond orally or in writing on his or her behalf.
C. Recommended decision: After considering the allegations raised in the report of alleged misconduct, response received, and any additional information gathered during the investigation, the director shall make a recommended decision within 30 days from the date a written or oral response is received. The director shall provide one of the following recommendations to the board:
(1) Formal discipline - The director shall provide the type and length of recommended discipline as well as a statement or summary of facts which the director believes justifies the recommended action. Upon deciding to recommend formal discipline, the director shall immediately forward the matter to the board’s administrative prosecutor with a request to issue a notice of contemplated action. The opportunity to have a formal evidentiary hearing must take place prior to any discipline being imposed by the board.
(2) Pre- notice of contemplated action settlement agreement - The director may, if believed to be in the best interest of the board, choose to propose a pre-notice of contemplated action settlement agreement that includes stipulated discipline. Any proposed settlement agreement must be signed by the respondent before being presented to the board for review and action to accept or reject the proposal. Failure to comply with the terms of a settlement agreement shall result in the immediate issuance of a notice of contemplated action based on the originally reported alleged misconduct.
(3) Dismiss complaint - The director may recommend to the board that the complaint be dismissed based on the totality of the circumstances and evidence available. If the board rejects the recommendation a notice of contemplated action shall be issued.
D. Notice of contemplated action: A notice of contemplated action (NCA) may be issued upon request of the director or by vote of the board. The NCA shall be drafted by the board’s administrative prosecutor and signed by the director, and must be postmarked, certified mail return receipt requested, no later than 90 days after the request for issuance of the NCA is made by the director or the board, unless the director agrees in writing to an extension. The NCA shall include the following:
(1) a summary of the director’s recommended decision and notice that the recommended formal discipline is only a recommendation and is subject to the approval or modification by the board;
(2) notice that the board has sufficient evidence that, if not rebutted or explained, will justify the board taking the contemplated action, up to and including the revocation of certification;
(3) a statement of alleged violations of the Law Enforcement Training Act or board rules;
(4) a general explanation and summary of the evidence that justify the contemplated action; and
(5) that unless the respondent, within 30 days after the service of the notice, provides a written request for a formal hearing, the board may take the contemplated action.
[10.29.1.12 NMAC - Rp, 10.29.1.12 NMAC, 11/15/16]
10.29.1.13 PROCEEDINGS FOR DENIAL, REVOCATION, OR SUSPENSION BEFORE THE LAW ENFORCEMENT ACADEMY BOARD; ProcedureS:
A. All contemplated actions to deny, suspend or revoke a police officer’s or telecommunicator’s certification shall be brought before the board before taking effect.
B. An evidentiary hearing will be held if the board receives, within 30 calendar days from the receipt of the notice of contemplated action, a request for hearing. Such request shall be made in writing and shall be addressed to the board. The request may be either personally served upon the director or sent by registered mail to the New Mexico law enforcement academy. If a request for hearing is not received within the time and in the manner required, the board may take the action contemplated in the notice and such action shall be considered final.
C. Within 20 days of receiving a request for hearing the director, or designated hearing clerk, shall issue a scheduling order that includes:
(1) date, time, and location of the hearing;
(2) identifying the hearing officer or board member(s) to preside over the hearing;
(3) notice that the respondent must appear in person but may be represented by counsel; and
(4) filing information and deadlines for completion of discovery and hearing proceedings.
D. A hearing shall be held within 90 days of the date the request for hearing is received unless additional time is agreed upon by the respondent and prosecutor. A written waiver shall be required by the respondent if the time limitations are exceeded.
E. The respondent may, within 10 calendar days after receiving the scheduling order, file with the board as concise statement of the issues on which he or she wishes to be heard regarding the alleged misconduct and a concise statement setting forth the factual grounds and authorities relied upon.
F. The parties shall file with the board a list of witnesses and brief description of their testimony and all anticipated exhibits to be introduced at the hearing at least 10 calendar days in advance of the hearing date.
G. The board may appoint a hearing officer to receive testimony and make recommendations to the board.
H. Neither an appointed hearing officer nor any member of the board shall participate in any adjudicatory proceeding if, for any reason, the hearing officer or board member cannot afford a fair and impartial hearing to the parties.
I. Either party may peremptorily excuse one hearing officer by filing a notice of peremptory excusal within 10 calendar days of receipt of the scheduling order.
J. Either party may petition to excuse a hearing officer or board member for good cause from hearing or deciding the case by filing a motion of excusal at least 20 calendar days prior to the date of the hearing or board meeting and states with particularity the specific reasons for excusal. The board or designated hearing officer shall rule on motions of excusal and no interlocutory appeal of the decision shall be permitted.
K. Parties are not to discuss the merits of any pending adjudicatory proceeding with members of the board or a designated hearing officer unless both parties, or their respective representatives, are present or included in the communication.
L. The parties may engage in discovery limited to interrogatories, requests for production, and requests for admission.
M. In connection with any hearing under these rules, the board or hearing officer shall have power to have counsel to develop the case; to subpoena, for purposes of discover and of the hearing, witnesses and relevant books, papers, documents, and other evidence; to administer oaths or affirmations to witnesses called to testify; to take testimony; to examine witnesses; and to direct a continuance of any case. Hearing officers may also hold conferences before or during the hearing for the settlement or simplification of the issues with the consent of the respondent.
N. Proposed settlements may be proposed by the administrative prosecutor, and shall be accompanied by a waiver by the respondent of time limits imposed by these rules. Any proposed settlement is subject to final approval by the board.
O. Extensions of time requirements set forth in these rules shall be granted in the discretion of the hearing officer or the board. The hearing officer shall ensure that necessary waivers are provided as needed when granting extensions.
P. The hearing officer may allow the record to remain open for no more than 30 days to permit the parties to submit proposed findings. The decision to leave the record open shall be in the absolute discretion of the hearing officer as well as the decision to incorporate or exclude any submitted finding in the final report to the board.
[10.29.1.13 NMAC - Rp, 10.29.1.13 NMAC, 11/15/16]
10.29.1.14 HEARINGS BEFORE THE LAW ENFORCEMENT ACADEMY BOARD; PRocedures:
A. Hearings conducting pursuant to this rule shall be open to the public unless the parties agree that it shall be closed. Hearings shall be conducted at the law enforcement academy or other location selected by the board or designated hearing officer.
B. A respondent may appear through a New Mexico licensed attorney or assisted by a representative, provided that such individual has made a written entry of appearance at least seven calendar days prior to the hearing date.
C. The board or designated hearing officer shall conduct the hearing in an orderly manner without strict adherence to the rules of evidence required in judicial proceedings.
D. Oral evidence shall be taken only under oath or affirmation.
E. The board or designated hearing officer may admit all evidence, including affidavits, if it is the sort of evidence upon which responsible persons are accustomed to rely on in the conduct of serious affairs. Immaterial, irrelevant, or unduly cumulative evidence may be excluded.
F. Rules of privilege shall be effective to the extent that they are required to be recognized in civil actions in the district courts of the state of New Mexico.
G. The board or designated hearing officer may utilize their experience, technical competence, and specialized knowledge in the evaluation of evidence presented to them. Notice may be taken of judicially cognizable facts in addition to technical or scientific facts within the board’s specialized knowledge.
H. The hearing shall be recorded either by stenographic means or by a sound recording device. All evidence received during the course of the hearing shall be made part of the formal record. The record of proceedings shall be maintained by the law enforcement academy staff in Santa Fe and copies shall be made available to the parties upon request.
[10.29.1.14 NMAC - Rp, 10.29.1.14 NMAC, 11/15/16]
10.29.1.15 DECISIONS OF THE BOARD; Procedures:
A. In the event the hearing is conducted by a quorum of the board a decision shall be made during a public meeting and a written order shall be issued within 60 calendar days after the hearing.
B. In the event a hearing officer has been appointed, the hearing officer shall prepare a hearing officer report with proposed findings of fact and a recommended decision of whether a violation occurred within 60 calendar days of the completion of the hearing or closing of the record. A copy of the report shall be served on the parties by certified mail, return receipt requested. Upon receipt, the parties may within 10 calendar days, file a statement of objections to the hearing officer report with the board. The board shall proceed to consider the case and as soon as practicable review the hearing officer report and any objections filed by parties, as well as the director’s recommendation, and issue a determination. No additional oral arguments by the parties shall be allowed. If the board rejects the hearing officer’s recommended findings or decision, particularly when the credibility of a witness is at issue, it shall review at least as much of the record as is necessary to support its decision. The board shall consider the matter at its next board meeting after filing of the hearing officer report. The board’s written decision and order shall be signed within 30 days after the board’s vote on the matter.
C. After a decision of the board is rendered, the board shall serve upon the parties a written copy of the decision and final order by certified mail, return receipt requested. Final orders of the board shall at a minimum contain findings of fact, conclusions of law, and an order based on the determination.
[10.29.1.15 NMAC - Rp, 10.29.1.15 NMAC, 11/15/16]
10.29.1.16 METHOD OF SERVICE NOTICE; Procedure:
A. Any notice required by rules may be served upon a respondent at his or her last known address, either by hand delivery by an officer authorized by law to serve process or by certified mail with return receipt requested.
B. Service of notice is complete when the notice is:
(1) hand delivered; or
(2) deposited with the United States postal service by certified mail, return receipt requested.
[10.29.1.16 NMAC - Rp, 10.29.1.16 NMAC, 11/15/16]
10.29.1.17 COMPUTATION OF TIME: In computing any period of time prescribed or allowed by these rules, the day of the act from which this period of time begins to run shall not be included. The last calendar day of the time period shall be included in the computation.
[10.29.1.17 NMAC - Rp, 10.29.1.17 NMAC, 11/15/16]
10.29.1.18 PARENTAL RESPONSIBILITY ACT COMPLIANCE:
A. This rule is adopted pursuant to the Parental Responsibility Act, Sections 40-5A-1 through 40-5A-13 NMSA 1978. All terms defined in the Parental Responsibility Act shall have the same meanings in this subpart.
B. Disciplinary action: If an applicant, certified police officer or certified telecommunicator is not in compliance with a judgment and order for child support the law enforcement academy board:
(1) shall deny an application for certification; and
(2) has grounds for suspension or revocation of a police officer’s or telecommunicator’s certification.
C. Certified list: Upon receipt of human services division’s certified list of obligors not in compliance with a judgment and order for support, the law enforcement academy board shall match the certified list against the current list of certified police officers, and certified telecommunicators and applicants for certification. Upon the later receipt of an application for certification, the board shall match the applicant against the current certified list. By the end of the month in which the certified list is received, the board shall report to human services division the names of board applicants, certified police officers and certified telecommunicators who are on the certified list and the action the board has taken in connections with such individuals.
D. Initial action: Upon determination that an applicant, certified police officer or telecommunicator appears on the certified list, the director shall:
(1) issue a notice of contemplated action pursuant to these rules to take the appropriate action to deny or revoke the certification; or
(2) for current certified police officers or certified telecommunicators only, informally notify the individual that his or her name is on the certified list, and that the individual must provide the director with a subsequent statement of compliance from HSD within 30 days of receipt of the notice from the director; if the certified police officer or certified telecommunicator fails to provide this statement, the director shall issue a notice of contemplated action.
E. Notice of final decision: Prior to taking any contemplated action, the director shall serve upon the applicant, certified police officer or certified telecommunicator a written notice stating that:
(1) the director has grounds to bring such an action before the law enforcement academy board, and that such action will be taken unless the applicant, certified police officer or certified telecommunicator:
(a) mails a letter (certified mail return receipt requested) within 30 days after service of the notice of contemplated action requesting a hearing; or
(b) provides the director, within 30 days of receipt of the notice of contemplated action, with a statement of compliance from HSD; and
(2) if the applicant, certified police officer or certified telecommunicator disagrees with the determination of non-compliance, or wishes to come into compliance the individual should contact the HSD child support enforcement division.
F. Evidence and proof: In any hearing under this section, relevant evidence is limited to the following:
(1) a statement of non-compliance is conclusive evidence that requires the board to take the contemplated action, unless;
(2) the applicant, certified police officer or certified telecommunicator provides the board with a subsequent statement of compliance which shall preclude the board from taking any action under this section.
G. Order: When a disciplinary action is taken under this subpart solely because the applicant, certified police officer or certified telecommunicator is not in compliance with a judgment and order for support, the order shall state that the application or certification shall be reinstated upon presentation of a subsequent state of compliance. Reinstatement following board action under the subpart shall require the certificate holder to meet all other board requirements for reinstatement.
H. Procedures: Proceedings under this subpart shall be governed by the applicable provisions of Section 29-7-13B NMSA 1978, (Repl. Pamp. 1994) and the board’s rules regarding disciplinary proceedings.
[10.29.1.18 NMAC - Rp, 10.29.1.18 NMAC, 11/15/16]
HISTORY OF 10.29.1 NMAC:
Pre-NMAC History: The material in this part was derived from that previously filed with the State Records Center and Archives under: NMLEA Rule #1, Regulations, Policies, And Procedures For Conducting The Business Of The Law Enforcement Academy Board, filed 2-14-80; Rule #1, Regulations, Policies, And Procedures For Conducting The Business Of The Law Enforcement Academy Board, filed 12-6-83; NMLEA Rule #A1, Regulations, Policies, And Procedures For Conducting The Business Of The Law Enforcement Academy Board, filed 3-10-89; NMLEA Rule #A1, Regulations, Policies, And Procedures For Conducting The Business Of The Law Enforcement Academy Board, filed 12-31-92; NMLEA Rule #7, Open Meeting Guidelines, filed 2-14-80; NMLEA Rule #A2, Open Meeting Guidelines, filed 3-10-89; NMLEA Rule #A2, Open Meeting Guidelines, filed 6-20-90; NMLEA Rule #12, Decertification, filed 2-14-80; NMLEA #A3, Decertification, filed 3-10-89; NMLEA Rule #A3, Qualifications For Admission To The Academy; filed 3-11-93; NMLEA Rule #A3, Qualifications For Admission To The Academy; filed 3-15-93; NMLEA Rule #A3, Qualifications For Admission To The Academy; filed 6-29-93; NMLEA Rule #A4, Grounds For Revocation Or Suspension Of Police Officer Certification; Reporting Requirements, filed 3-11-93; NMLEA Rule #A4, Grounds For Revocation Or Suspension Of Police Officer Certification; Reporting Requirements, filed 6-29-93; NMLEA Rule #A5, Procedures For Suspension Or Revocation Of Police Officer Certification, filed 3-11-93; NMLEA Rule #A5, Procedures For Denial, Suspension Or Revocation Of Police Officer Certification, filed 6-29-93; NMLEA Rule #A6, Disposition Of Appeals Before The Law Enforcement Academy Board, filed 3-11-93; NMLEA Rule #A6, Proceedings For Denial, Revocation Or Suspension Before The Law Enforcement Academy Board, filed 6-29-93; NMLEA Rule #A7, Hearing Before The Law Enforcement Academy Board, filed 3-11-93; NMLEA Rule #A7, Hearings Before The Law Enforcement Academy Board, filed 6-29-93; NMLEA Rule #A8, Decisions Of The Board, filed 3-11-93; NMLEA Rule #A9, Method Of Serving Notice, filed 3-11-93; NMLEA Rule #A10, Computation Of Time, filed 3-11-93; NMLEA Rule #A11, Parental Responsibility Act Compliance, filed 11-7-95.
History of Repealed Material:
10.29.1 NMAC, Law Enforcement Academy - General Provisions, filed 7-1-2001 - Repealed effective 11/15/2016.