New Mexico Register / Volume XXXVII, Issue 17 / September 9,
2026
This is an amendment
to 11.3.500 NMAC Sections 7, 8, 9, 10, 12, 13 and 14 to be
effective 9/9/2026.
11.3.500.7 DEFINITIONS:
A. “Adjudicatory body” means the appeal
tribunal, the board of review or other commissions or body within the
department holding an adjudicatory hearing.
B. “Adjudicatory hearing” means a
judicial or quasi-judicial hearing upon either the law or the evidence or both
which allows the parties to present evidence, objections to evidence, documents
and witnesses as well as cross-examine opposing parties’ witnesses and
evidence.
C. “Administrative law judge or ALJ”
mans the individual who conducts appeal tribunal hearings and makes decisions
on issues arising from determinations issued by the department. This term is synonymous with the term “hearing
officer” as set forth in Section 51-1-8 NMSA 1978.
D. “Authorized representative” means an
individual who, by virtue of his position within the department, is designated
by the secretary to perform certain specific tasks on behalf of the department.
E. “Good
cause” means a substantial reason, one that affords a legal excuse, or a
legally sufficient ground or reason. In
determining whether good cause has been shown for permitting an untimely action
or excusing the failure to act as required, the department may consider any
relevant factors including, but not limited to, whether the party acted in the
manner that a reasonably prudent individual would have acted under the same or
similar circumstances, whether the party received timely notice of the need to
act, whether there was administrative error by the department, whether there
were factors outside the control of the party that prevented a timely action,
the efforts made by the party to seek an extension of time by promptly
notifying the department, the party’s physical inability to take timely action,
the length of time the action was untimely, and whether any other interested
party has been prejudiced by the untimely action. However, good cause cannot be
established to accept or permit an untimely action or to excuse the failure to
act, as required, that was caused by the party’s failure to keep the department
directly and promptly informed by written, signed statement of the claimant’s,
employer’s or employing unit’s correct mailing address. A written decision concerning the existence of
good cause need not contain findings of fact on every relevant factor, but the
basis for the decision must be apparent from the [order] decision.
F. “Practice manual” means a resource
maintained by the department consisting of department procedures and guidelines
based on federal and state statutes and regulations, Department of Labor
directives and guidance, and decisions of the Board of Review or district court
judges.
[11.3.500.7 NMAC - N, 01/01/2003; A, 11/15/2012; A, 07/31/2013; A, 10/29/2019; A, 9/9/2026]
11.3.500.8 PRESENTATION OF APPEALS OF INITIAL DETERMINATIONS:
A. Any interested party aggrieved by a
determination of the department may file an appeal to the appeal tribunal
within 15 days from the date of transmission of the determination. Any written communication clearly
demonstrating a desire to appeal a determination of the department will be
regarded as an appeal. Appeals shall be
transmitted to the department by U.S. mail, email, [by] fax or [by]
electronic filing using the on-line system.
All appeals should be transmitted to the department in a format
indicating the interested party’s desire to appeal. For any issues of timeliness with regard to
faxed appeals, the time and date affixed on the department’s receiving device
will be presumptively the date and time of submission. For any issues of
timeliness with regard to appeals submitted via U.S. mail, the postmark date on
the appeal envelope will presumptively be the date and time of submission. For any issues of timeliness with regard to
appeals filed electronically through the department’s claims processing
website, the date and time that the department’s on-line system “electronically
stamps” the appeal will be presumptively the date and time of submission.
B. All interested parties will be given
notice of any hearing or review before the appeal tribunal as provided for in 11.3.500.9
and 11.3.500.12 NMAC.
C. Unless otherwise provided by statute
or a specific rule of the department, the time for the appeal of any
determination from one level to another within the department is 15 calendar
days from the date of the transmission of the decision or determination, with
the first day commencing on the calendar date after the date of transmission.
D. The time for filing any appeal within
the department may be extended only upon a showing of good cause.
[11.3.500.8 NMAC - N, 01/01/2003; A, 11/15/2012; A, 10/29/2019; A, 9/9/2026]
11.3.500.9 ADJUDICATORY PROCEEDINGS GENERALLY:
A. Right to representation: In any adjudicatory hearing before the
department:
(1) Any party may self-represent or be
represented by an attorney at law or by any other person qualified to represent
the party in the matters under consideration. The secretary may bar attorneys
and authorized representatives from appearing on behalf of others in proceedings
before the department if the attorney or authorized representative’s previous
conduct has established to the department’s satisfaction that the attorney or
authorized representative is unlikely to provide competent representation in
future proceedings.
(2) A partnership may be represented by
any of its employees, members or duly authorized representative. A corporation or association may be
represented by an officer, employee or any duly authorized representative. Any
governmental entity may be represented by an officer, employee, or any other
authorized person.
(3) The presiding officer or the secretary
may, for lack of qualifications or other sufficient cause, bar any person from
representing any party, and in such circumstances the reasons for such
bar shall be set out in the record of proceedings.
B. The unauthorized practice of law: Any
party may be represented by an attorney at law licensed to practice in the
courts of this state. A representative or agent other than licensed attorneys
may represent any party only to the extent that such participation does not
constitute unauthorized practice of law under the statute and rules of the
courts of the state of New Mexico.
C. Copies: Consistent with the provisions of Section
51-1-32 NMSA 1978 and 11.3.100.106 NMAC, while any proceeding before the
department is ongoing a party to such proceeding may request and receive from
the department, without charge, one set of copies of the department files and
records, including but not limited to investigation reports, statements,
memoranda, correspondence, [tape] recordings or transcripts of hearings,
if available, or other data pertaining to matters under consideration, scheduled
for hearing, or other proceeding before the
department. Thereafter, copies shall be charged at the
department’s usual rate for copying.
D. Notice of hearing: Upon the scheduling of an adjudicatory
hearing before the appeal tribunal on any appeal, a notice of the hearing shall
be transmitted to all interested parties at least 10 calendar days prior to the
date of the adjudicatory hearing and shall include:
(1) a statement notifying the parties of
their responsibilities and the requirements to participate in the hearing;
(2) a statement of the time, place and
nature of the hearing;
(3) a statement of the legal authority and
jurisdiction under which the hearing is to be held;
(4) a short and plain statement of the
foreseeable issues to afford each party reasonable opportunity to prepare; if
any issue cannot be stated in advance of the hearing, it shall be stated as
soon as practicable; in all cases of delayed statement, or where subsequent
amendment of the issues is necessary, sufficient time shall be allowed after
statement or amendment to afford all parties reasonable opportunity to prepare or the parties may waive notice of such issue on the record.
(5) Any party to an appeal before the
appeal tribunal may elect, using the self-service feature of the claims
processing website, to have all notices of hearing for that appeal delivered
electronically rather than by paper notice through the mail. Such electronic
notification shall be deemed legally sufficient notice for all purposes and the
party electing that electronic notification will be deemed to have acknowledged
their responsibility to exercise due diligence in checking the website for
notifications. For parties electing
electronic notification, such notification shall continue until the party has
taken all necessary steps change their notification preference using the
self-service feature of the website. Until the party’s notification preference
has been changed, that party’s obligation to exercise due diligence in checking
the website for notifications will remain in effect.
(6) If an adjudicatory hearing has been
scheduled and a notice of hearing has already been issued to an interested
party before that interested party’s attorney or authorized representative has
filed its entry of appearance in the matter, notice shall be deemed to be
sufficient.
E. Subpoenas: Authorized representatives of the department
may issue subpoenas requiring upon reasonable notice, the attendance and
testimony of witnesses or the production of evidence, including books, records,
correspondence, documents, papers or other objects necessary and relevant to
any proceedings before the department.
An authorized representative in any proceeding may authorize the taking
of depositions of witnesses in the same manner and to the same extent as
permitted in the district court.
(1) “Subpoena” means an official directive
or order by [an administrative law judge] a hearing officer or
quasi-judicial official directing the recipient to appear and testify as a
witness. The subpoena may require
witnesses to bring documents with them when they come to testify. Failure of a party to respond to a subpoena
could result in the department filing a motion for compliance in the district
court of the jurisdiction where the party is located.
(2) The department’s authority to issue
subpoenas is found at Subsection L of Section 51-1-8 NMSA 1978 and Section 51-1-28
NMSA 1978. Department subpoenas can be
served personally at least 5 days prior to the hearing date or by certified
mail posted at least 10 days prior to the hearing date.
(3) Issuance and challenges to
subpoenas: The adjudicatory body or
other authorized representative of the department may issue subpoenas to compel
attendance of witnesses and production of records in connection with proceedings
before the adjudicatory body or department.
Sections 51-1-28 & 29 NMSA 1978.
(a) Who may request: Any party to an
adjudicatory proceeding may make written application to the applicable
adjudicatory body for the issuance of a subpoena.
(b) Contents of requests for
subpoena: The party seeking the subpoena
must reasonably identify and specify the evidence or documents sought and show
the relevance of such evidence or documents to the issue under consideration. The proposed subpoena shall show upon its
face the name and address of the party at whose request the subpoena was
issued.
(c) Decision regarding issuance of
subpoena: The adjudicatory body, at its
discretion, may issue the subpoena upon the written application, [or]
may schedule a limited purpose hearing or conference, or [on the
application to] hear argument and objections from interested parties for
the purpose of determining whether the subpoena should issue for the next
scheduled hearing. If such a hearing
is held, the adjudicatory body may make a ruling on the record during the
hearing, or may, in its discretion, issue a written decision, informing the
parties of the decision and of their right to further appeal.
(d) Challenge to issued subpoena or a
request to quash: Any witness summoned
may petition the department to quash or modify a subpoena served on the
witness. The department shall give prompt notice of such petition to all
interested parties. After the investigation or hearing, whichever the
department considers appropriate, it may grant the petition in whole or part,
or it may deny the petition upon a finding that the testimony or the evidence
required to be produced does not relate with reasonable directness to any
matter in question, or that a subpoena for the attendance of a witness or the
production of evidence is unreasonable or oppressive, or has not been issued a
reasonable period in advance of the time when the evidence is requested, or for
any other reason that justice requires.
(e) Appeal of disputes: The stated reason for the request for the
subpoena and the stated reason for the opposition as well as the [administrative
law judge’s] hearing officer’s decision in regard to the subpoena
shall be part of the record on appeal.
(f) Order of protection: If the department denies the petition to
quash the subpoena, the aggrieved party may petition the district court of
either the county where [he resides] they reside, or, in the case
of a corporation, the county where it has its principal office, or the county
where the hearing or proceeding will be held, for an order of protection.
(g) Sanctions to compel compliance with
subpoenas: In case of failure to comply
with any subpoena issued and served under the department’s statutory authority
or for the refusal of any person to testify to any matter regarding which [he]
they may be interrogated lawfully in a proceeding before an adjudicatory
body of the department, the department may apply to the district court either
in the county of the person's residence or in the county where the hearing or
proceeding is being held, for an order to compel compliance with the subpoena
or the furnishing of information or the giving of testimony. The prevailing party is entitled to costs of
the enforcement proceeding.
(h) Sanctions against parties for
witnesses’ failure to comply with subpoenas: When a subpoenaed witness fails to
attend or testify, if a party exercises substantial control or influence over
the witness, such as an employee, relative of a party employer or a relative of
a party claimant, the adjudicatory body can deem that, if the witness had
appeared and testified, the testimony would have been unfavorable to the party
controlling or influencing the witness.
(i) If a
party or a subpoenaed witness fails or refuses to produce records or
documentary evidence pursuant to an order or subpoena of the adjudicatory body,
the adjudicatory body can deem that, if the records or documentary evidence had
been produced, the evidence would have been unfavorable to the party failing or
refusing to produce the records or documentary evidence or to the party
controlling or influencing the witness who failed or refused to produce the
records or documentary evidence.
F. Disqualification of board of review
members and [appeal tribunal administrative law judges] hearing
officers: [An appeal tribunal
administrative law judge] A hearing officer or board of review
member shall withdraw from any proceeding in which the [appeal tribunal
administrative law judge] hearing officer or board of review member
cannot accord a fair and impartial hearing or consideration and from any
proceeding in which the [appeal tribunal administrative law judge] hearing
officer or board of review member has an interest. Any party may request a
disqualification of [an appeal tribunal administrative law judge] a
hearing officer or board of review member on the grounds of the person's
inability to be fair and impartial, by filing an affidavit or written statement
or making a statement on the record with the appeal tribunal or board of review
promptly upon the discovery of the alleged grounds for disqualification,
stating with particularity the grounds upon which it is claimed that the person
cannot be fair and impartial. The disqualification shall be mandatory if
sufficient factual basis is set forth in the affidavit of disqualification. If
a board of review member is disqualified pursuant to this regulation, the
remaining board of review members may appoint [an appeal tribunal
administrative law judge] a hearing officer or other qualified
department representative to sit on the board of review for the proceeding
involved. The grant or denial of a
requested disqualification can be considered in an appeal on the merits.
G. Attorneys at law and authorized
representatives: Prior to or at the
commencement of any adjudicatory hearing, all attorneys at law or other
authorized representatives shall file a written entry of appearance which shall
be made a part of the record and a copy shall be furnished by the attorney or
representative to the opposing party.
The entry of appearance shall be signed by the attorney at law or
authorized representative, whose mailing address, telephone number and other
contact addresses shall be provided. An
attorney or representative who has provided notice of representation will be
deemed to continue such representation until a written notification of the
withdrawal of such representation is provided to all parties, the [administrative
law judge] hearing officer or the board of review. Even if an attorney or authorized
representative has entered [his] an appearance on behalf of a
party, the party may appear on [his] their own behalf without the
attorney or authorized representative.
H. Ex parte
communications: No party or
representative of a party or any other person shall communicate off the record
about the merits of the case with the cabinet secretary, any [administrative
law judge] hearing officer or board of review member who
participates in making the decision for any adjudicatory hearing, unless the
communication is written and a copy of the communication is transmitted to all
interested parties to the proceeding. The cabinet secretary, any [administrative
law judge] hearing officer, board of review member or their
representatives shall not communicate off the record about the merits of an
adjudicatory hearing with any party or representative of a party or any other
person, unless a copy of the communication is sent to all interested parties in
the proceeding.
I. Requirements for hearing evidence or
reviewing record: The cabinet secretary,
board of review member or appeal tribunal [administrative law judge] hearing
officer shall not participate in any decision for any adjudicatory hearing
unless the cabinet secretary, board of review member or [appeal tribunal
administrative law judge] hearing officer has heard the evidence or
reviewed the record.
[11.3.500.9 NMAC - N, 01/01/2003; A, 11/15/2012; A, 07/31/2013; A, 10/29/2019; A, 9/9/2026]
11.3.500.10 HEARING PROCEDURE BEFORE THE APPEAL TRIBUNAL:
A. Conduct of adjudicatory hearings:
(1) Adjudicatory hearings before the
appeal tribunal shall be conducted in such a manner that all parties are
afforded basic rights of due process and that all pertinent facts necessary to
the determination of the rights of the parties are obtained. All hearings and proceedings will be
conducted informally in such a manner
as to ascertain the substantial rights of the parties and will not be governed
by common law or statutory rules as to the admissibility of evidence or by
technical rules of procedure, but the procedures shall afford the parties
equally and impartially the right to:
(a) call and examine witnesses and to
cross examine the opposing party’s witnesses;
(b) introduce exhibits and offer rebuttal
evidence;
(c) object to questions and to the
introduction of improper or irrelevant testimony or evidence; and
(d) submit written expositions of the
case, within the discretion of the [administrative law judge] hearing
officer.
(2) The appeal tribunal, on its own
initiative:
(a) may examine parties and witnesses;
(b) require additional evidence as it
finds necessary to the determination of the issues before it;
(c) may exclude testimony and evidence
which it finds to be incompetent, irrelevant or otherwise improper by standards
of common reasonableness; and
(d) if it deems appropriate, the appeal
tribunal may permit opening and closing statements.
B. Opportunity for fair hearing: In conducting adjudicatory hearings, the
appeal tribunal shall afford all parties an opportunity for a full and fair
hearing including an opportunity to respond and present evidence and argument
on all issues involved; provided that the term “adjudicatory hearing” as used
in this rule does not apply to fact-finding interviews conducted by the
department representative for purposes of making an initial determination of
eligibility for benefits or liability for contributions, payments in lieu of
contributions, interest or penalties under the Unemployment Compensation Law.
C. Continuance, adjournment and
reopening of adjudicatory hearings:
(1) An adjudicatory hearing before [an
appeal tribunal administrative law judge] hearing officer, for good
cause shown, may be continued or adjourned upon the request of a party or upon
the appeal tribunal's own motion, at any time before the hearing is
concluded. A claimant's right to a
prompt determination of claimant's eligibility and payment of benefits shall
not be impaired by undue delay of proceedings.
(2) If any party fails to appear at a scheduled
adjudicatory hearing, the appeal tribunal may, in its best judgment, either
adjourn the hearing until a later date or proceed to render its decision on the
record and the evidence then before it. Any decision shall be subject to
reopening before the appeal tribunal upon a showing of good cause for the
party’s failure to appear as long as the request to reopen is received no later
than 15 days from the date of the decision that.
(3) A reopening of any adjudicatory
hearing shall be granted upon showing of good cause, including good cause for
not appearing at the scheduled hearing, or may be ordered on the appeal
tribunal's, the board of review's or the secretary’s own motion for good
cause. A request for reopening shall be
made as soon as reasonably possible but in no event later than 15 days after
the decision of the appeal tribunal was mailed.
(4) A request for a continuance,
adjournment or reopening shall be made to the [appeal tribunal
administrative law judge] hearing officer as identified on the
notice of hearing. If the [administrative
law judge] hearing officer finds good cause for failing to appear,
the merits of the appeal shall be set for hearing. Notice of the date, time and
place of a reopened, postponed or adjourned hearing shall be given to the
parties or their representatives and shall include a statement of the issues to
be heard. The [administrative law
judge] hearing officer shall issue a decision approving or denying a
request for a continuance adjournment or reopening.
(5) A request for reopening made later
than 15 days after the decision of the appeal tribunal was issued shall be
heard by the secretary or the board of review on the reason for the untimely
request for the reopening. If the
secretary or the board of review finds good cause for the late request, the
merits of the appeal shall be set for hearing before the appeal tribunal.
Notice of the date, time and place of a reopened hearing shall be given to the
parties or their representatives and shall include a statement of the issues to
be heard.
D. Authority over conduct of
adjudicatory hearings. The appeal
tribunal shall have and shall exercise full authority over the conduct and
behavior of parties and witnesses appearing before it to insure a fair, orderly
adjudicatory hearing and an expeditious conclusion of the proceedings.
E. Mode of hearings:
(1) The appeal tribunal may conduct the
adjudicatory hearing by telephone or in person at the discretion of the appeal
tribunal. The mode of conducting the
hearing will be as indicated in the notice setting the hearing.
(2) Notice of telephone hearing: If the hearing is to be by telephone, the
notice shall so inform the parties and will include instructions for informing
the [administrative law judge] hearing officer of the necessary
telephone numbers. If the hearing is a
telephonic hearing, no party or representative will be permitted to attend in
person. If the hearing is an in-person
hearing, at the discretion of the [administrative law judge] hearing
officer, a party, witness or representative will be permitted to appear
telephonically.
F. Exhibits:
(1) Exchange of exhibits prior to
hearings:
(a) A party seeking to introduce exhibits
shall provide copies of all proposed exhibits to the other party. The copies shall be transmitted by the
offering party in a manner to [insure] ensure their receipt by
the other party at least [48 hours] two business days prior to
the date and time of the scheduled hearing.
(b) A party seeking to introduce exhibits
shall provide copies of all proposed exhibits to the [administrative law
judge] hearing officer at least [48 hours] two business
days prior to any hearing. In no
event shall the [administrative law judge] hearing officer be
provided copies of exhibits not previously transmitted by the offering party to
the opposing party.
(c) Documents not submitted in accordance
with this subsection shall be denied admission and denied consideration by the
department:
(i) unless
it is apparent that the particular document was previously seen by the party
whose interest is affected, that party acknowledges having seen the document
and has no objection to its admission; or
(ii) the [administrative law judge] hearing
officer, in [the judge’s] their discretion, determines that
fundamental fairness and the proper administration of the Unemployment
Compensation Law requires the admission of the document.
(d) In any case where the [administrative
law judge] hearing officer determines that documentary evidence will
be admitted over the objection of a party that the party has not had an
opportunity to review and consider the evidence, a reasonable continuance shall
be granted by the [administrative law judge] hearing officer to
give the objecting party an opportunity to review the evidence.
(2) Marking exhibits: All exhibits tendered to the [administrative
law judge] hearing officer shall be separately marked for
identification. The employer’s exhibits
shall be denoted E-1, E-2, E-3 and so forth; the claimant’s exhibits shall be
denoted C-1, C-2, C-3 and so forth. A
file, such as a personnel file, containing voluminous documents need not be separately marked, but the pages shall
be individually numbered by the offering party prior to admission. Failure to sequentially number the pages of a
voluminous exhibit will be grounds to deny the admission of the exhibit.
(3) Exhibits admitted and considered by
the [administrative law judge] hearing officer shall be
individually identified on the record.
(4) Exhibits denied admission: The reason for the denial of admission of
tendered exhibits shall be clearly stated on the record. Typical, but not exclusive, reasons for the
denial of admission of an exhibit is lack of relevancy, immateriality,
redundancy and voluminous unnumbered pages or documents. Exhibits offered and denied admission shall
be retained in the record, but shall not form the basis for the decision of the
[administrative law judge] hearing officer. The written decision shall reiterate the
statement of exhibits denied admission and the basis for the denial.
G. Record of hearings:
(1) Proper record: The appeal tribunal
shall ensure that all of the testimony, objections and motions or other matters
in connection therewith are fully and accurately recorded, in such a manner
that a complete and accurate transcript can be rendered therefrom as needed.
(2) The record in an adjudicatory hearing
shall include:
(a) all documents in the department’s
files, pleadings, motions and previous rulings;
(b) documentary evidence received or
considered;
(c) a statement of matters officially
noticed;
(d) questions, tenders of evidence, offers
of proof, objections and rulings thereon in the form of a [tape]
recording or transcript;
(e) findings and conclusions; and
(f) any decision, opinion or report by
the cabinet secretary, board of review members or [appeal tribunal
administrative law judge] hearing officer conducting the hearing.
(3) The department deems that the recording
of a proceeding made by the department is the official recording of the record.
(a) Inaudible recording: If the [tape or digital] recording or
a significant portion of it is demonstrated as inaudible or otherwise unusable,
if the parties do not stipulate as to the matters which would have appeared on
the recording if usable, the appeal tribunal may order a rehearing de novo of
all matters or of only the matters which were on the unusable portions of
recording.
(b) Official transcript: The department or either party, at the
party’s expense, may prepare a typed transcript of any such [tape]
recording for the use of the parties.
Any typed transcript prepared by the department or under its supervision
may be designated by the appeal tribunal as the official transcript. Typed transcripts prepared by a party shall
not be deemed official transcripts unless such transcript was transcribed with
the department’s consent and prepared either in-person or from a department [tape
or digital] recording by an individual approved by the department. A copy of the typed transcript of an appeal
hearing may be made available without charge to parties of an appeal pending
before the district court.
(c) Availability of recordings: Upon
written application, for good cause shown, a duplicate copy of the recording of
all testimony, objections and motions or other matters will be supplied to any
party to the proceeding. Unless the
applicant is entitled to the a copy of the recording without charge or otherwise shows
good cause as to why the party should not be charged as provided in 11.3.100.106
NMAC, the applicant may be required to pay for a copy of the recording.
H. Factual information to be
considered: All evidence, including any
records, investigation reports and documents in the possession of the
adjudicatory body which the department desires to avail itself as evidence in making
a decision, shall be made a part of the record in the proceedings, and no other
factual information or evidence shall be considered, except as provided in this
section. Documentary evidence may be received in evidence in the form of copies
or excerpts or by specific citation to page numbers in published documents.
I. Briefs or memoranda of law,
requested findings of fact and conclusions of law: At any time during an adjudicatory hearing
and prior to a decision, the parties may be afforded a reasonable opportunity
to submit briefs or memoranda of law, proposed findings of fact and conclusions
of law, together with supporting reasons including citations to the record and
copies of case law, for the consideration of the adjudicatory body.
J. Official notice: Official notice may
be taken of all facts of which judicial notice may be taken and of other facts
within the specialized knowledge of the board of review or [appeal tribunal
administrative law judge] hearing officer, but whenever any such
member or officer takes official notice of a fact, the noticed fact and its
source shall be stated at the earliest practicable time, before or during the
adjudicatory hearing, but before the final decision, and any party shall, on
timely request, be afforded an opportunity to show the contrary.
K. Specialized knowledge of
department: The experience, technical
competence and specialized knowledge of the department and its staff may be
utilized in the evaluation of the evidence by the adjudicatory bodies of the
department.
L. Decision of the appeal tribunal:
(1) Decision in writing: Following the conclusion of an adjudicatory
hearing on an appeal, the appeal tribunal shall promptly announce its decision
on the case. The decision shall be in writing, shall include findings of fact
and conclusions of law, and shall be signed by the [administrative law judge]
hearing officer who heard the appeal.
(2) Findings of fact shall be based
exclusively on the record, the evidence presented at the tribunal hearing and
matters officially noted.
(3) The residuum rule shall apply in the issuance of all
decisions. This rule requires that the
decision of the department’s appeal tribunal be supported by “substantial
evidence”, that is evidence which would be admissible in a court of law. A decision of the appeal tribunal cannot be
made on the basis of controverted hearsay evidence alone; there must be a
residuum of legal evidence which would be admissible in a court of law.
(4) Where an appeal was not filed within
the statutory appeal period, the appeal tribunal shall, after review of the
record conduct an evidentiary hearing with notice to all interested parties to
determine whether the appellant has good cause for failure to timely appeal
from an initial determination. Any
decision that grants a request for reopening or finds good cause for failure to
timely appeal from an initial determination cannot be appealed. Any decision that denies a request for
reopening shall include the appeal tribunal’s findings and conclusions for the
denial. Either party
if aggrieved may file an appeal on the merits of any written decision issued by
the [administrative law judge] hearing officer to higher
authority.
(5) Publication of decision: Copies of any decision issued by the appeal
tribunal shall be promptly transmitted to all interested parties to the appeal.
M. Remand by appeal tribunal: The appeal tribunal may, in its discretion,
remand any issue developed from evidence presented at the hearing or apparent
from the existing record to the department with an order directing that a
determination be made with regard to that issue or that additional procedures
be taken to perfect a determination already issued or to make other disposition
in the matter.
[11.3.500.10 NMAC - N, 01/01/2003; A, 11/15-/2012; A, 07/31/2013; A, 10/29/2019; A,
9/9/2026]
11.3.500.12 PRESENTATION OF FURTHER APPEALS:
A. An interested party aggrieved by a
decision of the appeal tribunal is entitled to appeal to higher authority. A written communication clearly demonstrating
a desire to appeal a determination to higher authority shall be filed with the
department. The information submitted
with the appeal shall include a clear statement of the relevant facts and a
clear statement of the party's basis for appeal.
B. Secretary decision: The secretary shall review the application
and shall, within 15 days after receipt of the application for appeal, either
affirm the decision of the [administrative law judge] hearing officer,
remand the matter to the appeal tribunal for an additional hearing or new
decision, remand to the department for further investigation and determination,
or refer the decision to the board of review for further review and decision on
the merits of the appeal. Issues of
timeliness shall be decided by the secretary, who may refer the decision to the
board of review.
(1) Decision in writing: Following the conclusion of a review on an
appeal, the cabinet secretary shall issue a decision. The decision shall be in writing, shall
include findings of fact and conclusions of law, and shall be signed by cabinet
secretary.
(2) Findings of fact shall be based
exclusively on the record and matters officially noted.
(3) Publication of decision: Copies of any decision issued by the
secretary shall be promptly transmitted to all interested parties to the
appeal.
C. If the secretary takes no action
within 15 days of receipt of the application for appeal and review, the
decision will be promptly scheduled for review by the board of review as though
it had been referred by the secretary.
D. All appeals from a decision of the
appeal tribunal filed more than 15 days from the date of the appeal tribunal’s
decision shall be referred to the secretary, who may refer the decision to the
board of review. In addition to the
information required by Subsection A of 11.3.500.12 NMAC, all late appeals
shall contain a concise statement setting forth the reasons for the late
appeal. The secretary, or the board of review if the case has been
referred to the board, may extend the time for filing any appeal from a
decision of the appeal tribunal only upon showing of good cause.
E. Notice of review before the board of
review shall be [mailed] sent to all interested parties informing
them that, unless a hearing is granted pursuant to the Subsection A of
11.3.500.13 NMAC, no additional evidence shall be taken and all parties will
have the opportunity to submit written statements, briefs or memorandum of law
explaining why the decision of the appeal tribunal should be affirmed or
reversed.
F. Applications for leave to
participate or intervene in an appeal:
An interested party, if aggrieved by a decision of the appeal tribunal,
but not a party to the proceeding before the appeal tribunal, may apply for leave
to participate or intervene in an appeal before the board of review. The party applying for leave to participate
or intervene in an appeal before the board of review shall file with the board
of review an application for leave to join an appeal setting forth his interest
in the matter appealed. The board of
review shall have the discretionary power to approve or reject any such
application.
[11.3.500.12 NMAC - N, 01/01/2003,
A, 02/14/2011; A, 11/15/2012; A, 10/29/2019;
A, 9/9/2026]
11.3.500.13 THE BOARD OF REVIEW:
A. The board of review’s authority: In every case referred to the board of review
by the secretary from an appeal tribunal decision the board of review may, in
its discretion, hear and review [and decide] the case upon the
record; it may entertain written arguments, or, after notice to all parties and
remand the matter to the appeal tribunal in accordance with 11.3.500.9
NMAC [it may] to enter supplemental findings based on the existing
record or conduct a hearing and take additional evidence [before it].
B. Review of the record as an appellate
or reviewing body: As a general practice
and unless the board of review gives specific notice to the contrary, the board
sits in its capacity as an appellate or reviewing body. As such, it reviews the
record; it does not receive new evidence.
C. Remand by board of review to the
appeal tribunal or the department: With an order directing that a determination
or decision be made with regard to that issue, or that additional procedures be
taken to perfect a determination or decision already issued, or to make other
disposition in the matter, as the board of review, in its discretion, may deem
necessary, the board of review may remand any claim or an issue involved in a
claim; any issue developed from evidence presented at the hearing or apparent
from the existing record:
(1) To the appeal tribunal for the taking
of additional evidence or a hearing de novo. Hearings conducted by the appeal
tribunal pursuant to a remand by the board of review shall be conducted after
notice to all parties and in accordance with 11.3.500 NMAC. Unless directed otherwise by the board of
review, the appeal tribunal shall issue a decision based upon the entire record
before it, including the record of all the prior hearings. Parties to any
additional hearing shall have the right to review the appeal tribunal recording
made at any prior evidentiary hearing.
(2) To the department for fact-finding and
issuance of an initial determination or redetermination.
D. Appeals by the secretary: Within 15 days from the date of issuance of
any decision by the appeal tribunal, the secretary, on the secretary’s motion,
may request the board of review to reconsider a decision of [an appeal
tribunal administrative law judge] a hearing officer, which the
secretary believes to be inconsistent with law or the applicable rules of
interpretation or which is not supported by the evidence. In such situations
the board of review may, in its discretion, take additional evidence, review
the matter on the record or remand the matter to the appeal tribunal for an
additional evidentiary hearing.
E. Where an appeal was not filed within
the statutory appeal period, the cabinet secretary shall, after review of the
record and appeal, determine whether the appellant has good cause for failure
to timely appeal from an initial determination.
Any decision that denies a request to extend the time frame for the
appeal shall include findings and conclusions for the denial of the reopening.
F. Decision by the board of review:
(1) Decision in writing: The board of review may take the appeal under
advisement, [may order a transcript of proceedings for review may]
afford the parties an opportunity to file memorandum briefs and proposed
findings of fact and conclusions of law, [; or the board may] or issue
a decision. The decision shall be in writing, shall include findings of fact
and conclusions of law, and shall be signed by the members of the board who
heard or reviewed the appeal. If a
decision of the board of review is not unanimous, the decision of the majority
shall control. The minority may file a dissent from such decision.
(2) Findings of fact shall be based
exclusively on the record, the evidence presented at the tribunal hearing and
matters officially noted.
(3) Publication of decision: Copies of any decision issued by the board of
review shall be promptly transmitted to all interested parties to the appeal.
[11.3.500.13 NMAC - N, 01/01/2003; A, 11/15/2012; A, 10/29/2019; A, 9/9/2026]
11.3.500.14 [INSPECTION OF DECISIONS: Copies of all decisions of the cabinet
secretary, board of review and appeal tribunal shall be kept on file in
accordance with the state records center retention requirements at the
department’s office in Albuquerque, New Mexico. A compilation of decisions of
the appeal tribunal and board of review designated significant
by the secretary or the general counsel, but with the parties’ names and
identifying information redacted and removed shall be open for inspection. The redacted decisions shall be filed
chronologically but, from time to time, may be indexed by topic and offered as
a precedent manual.] [RESERVED]
[11.3.500.14 NMAC – N, 01/01/2003;
A, 11/15/2012; Repealed, 09/09/2026]
History of Repealed Material:
11 NMAC 3.500, Adjudicatory
Hearings, Filing of Appeals and Notice - Repealed 01/01/2003
11 NMAC 3.500.14, Inspection of
Decisions – repealed 9/9/2026