2023 New Mexico Statutes › Chapter 61 - Professional and Occupational Licenses › Article 1 - Uniform Licensing › Section 61-1-7 - Hearing officers; hearings; public; exception; excusal; protection of witness and information.

A. All hearings held pursuant to provisions of the Uniform Licensing Act shall be conducted either by the board or, at the election of the board, by a hearing officer who may be a member or employee of the board or any other person designated by the board in its discretion. A hearing officer shall, within thirty days after a hearing, submit to the board a report setting forth the hearing officer's findings of fact and recommendations.
B. All hearings held pursuant to provisions of the Uniform Licensing Act shall be open to the public; provided that in cases in which a constitutional right of privacy of a licensee, applicant or unlicensed person may be irreparably damaged, a board or hearing officer may hold a closed hearing if the board or hearing officer so desires and states the reasons for this decision in the record. The licensee, applicant or unlicensed person may, for good cause shown, request a board or hearing officer to hold either a public or a closed hearing.
C. Each party may peremptorily excuse one board member or a hearing officer by filing with the board a notice of peremptory excusal at least twenty days prior to the date of the hearing, but this privilege of peremptory excusal may not be exercised in any case in which its exercise would result in less than a quorum of the board being able to hear or decide the matter. Any party may request that the board excuse a board member or a hearing officer for good cause by filing with the board a motion of excusal for cause at least twenty days prior to the date of the hearing. In any case in which a combination of peremptory excusals and excusals for good cause would result in less than a quorum of the board being able to hear or decide the matter, the peremptory excusals that would result in removing the member of the board necessary for a quorum shall not be effective.
D. In any case in which excusals for cause result in less than a quorum of the board being able to hear or decide the matter, the governor shall, upon request by the board, appoint as many temporary board members as are necessary for a quorum to hear or decide the matter. These temporary members shall have all of the qualifications required for permanent members of the board.
E. In any case in which excusals result in less than a quorum of the board being able to hear or decide the matter, the board, including any board members who have been excused, may designate a hearing officer to conduct the entire hearing.
F. Each board shall have power where a proceeding has been dismissed, either on the merits or otherwise, to relieve the licensee, applicant or unlicensed person from any possible odium that may attach by reason of the proceeding, by such public exoneration as it sees fit to make, if requested by the licensee, applicant or unlicensed person to do so.
G. There shall be no liability on the part of and no action for damages against a person who provides information to a board in good faith and without malice in the reasonable belief that such information is accurate. A party who directly or through an agent intimidates, threatens, injures or takes adverse action against a person for providing information to a board shall be subject to disciplinary action.
History:
1953 Comp., § 67-26-7, enacted by Laws 1957, ch. 247, § 7; 1978 Comp., § 61-1-7; 1981, ch. 349, § 6; 1993, ch. 295, § 5; 2023, ch. 190, § 10.
ANNOTATIONS
The 2023 amendment,
effective July 1, 2023, clarified that disciplinary action can also apply to applicants or unlicensed persons in addition to licensees; in Subsection A, after "findings of fact", added "and recommendations"; in Subsections B and F, after each occurrence of "licensee", added "applicant or unlicensed person"; and in Subsection G, after "A", deleted "licensee" and added "party".
The 1993 amendment,
effective June 18, 1993, substituted "excusal; protection of witness and information" for "disqualification" in the catchline; substituted "any constitutional right of privacy" for "the reputation" in the first sentence of Subsection B; rewrote Subsection C; substituted "excusals for cause" for "disqualifications" in the first sentence of Subsection D; substituted "excusals" for "disqualifications" and "excused" for "disqualified" in Subsection E; and added Subsection G.
Charging board not disqualified in licensing on charge.
— The board of medical examiners has exclusive jurisdiction regarding the granting and revoking of certificates admitting physicians and surgeons to practice and, in view of the fact that the statutes do not provide for disqualification of board members, proceedings before the board may not be restrained merely by reason of the fact that the board itself initiated the proceedings against a physician and is therefore an interested party.
Seidenberg v. N.M. Bd. of Med. Exam'rs
, 1969-NMSC-028, 80 N.M. 135, 452 P.2d 469.
Zeal in performing public duty does not disqualify.
Seidenberg v. N.M. Bd. of Med. Exam'rs
, 1969-NMSC-028, 80 N.M. 135, 452 P.2d 469.
Due process violated where hearing conducted by prejudiced tribunal.
— Any utilization of this section which has the effect of allowing an administrative hearing, punitive in nature, to be conducted by a patently prejudiced tribunal must necessarily violate the due process provisions of the fifth and fourteenth amendments of the United States constitution and N.M. Const., art. II, § 18.
Reid v. N.M. Bd. of Exam'rs in Optometry
, 1979-NMSC-005, 92 N.M. 414, 589 P.2d 198.
One peremptory disqualification allowed.
— Interpretation of this section by the manufactured homes committee to allow only one peremptory disqualification of a committee member at a hearing was correct.
Rex, Inc. v. Manufactured Hous. Comm.
, 1995-NMSC-023, 119 N.M. 500, 892 P.2d 947.
Peremptory excusals must be exercised prior to the first of sequential hearings in a disciplinary action.
— Where, following the receipt of five patient complaints regarding petitioner, the New Mexico medical board (board) initiated two disciplinary actions against petitioner, each based on the complaints filed against him, a notice of summary suspension and a notice of contemplated action, both of which were assigned the same case number, and where petitioner requested hearings as to each notice, and where, following the summary suspension hearing, the hearing officer issued proposed findings of fact and conclusions of law recommending suspension of petitioner's medical license, and where the board adopted the hearing officer's recommendation of suspension, and where a second hearing was scheduled on the notice of contemplated action before the same hearing officer who presided over the summary suspension hearing, and where petitioner filed a motion for change of hearing officer, in which he stated that he was electing to exercise his right to a peremptory excusal of the assigned hearing officer, and where the hearing officer filed an order denying petitioner's motion on the basis that the peremptory excusal was not timely, stating that a peremptory excusal was not available to petitioner because NMSA 1978, § 61-1-7(C), provides for peremptory excusal at least twenty days prior to the first hearing, and where the board affirmed the hearing officer's order denying petitioner's motion for change of hearing officer, and where the contemplated action hearing was held as scheduled, resulting in the hearing officer's report recommending that petitioner's license be revoked, and where the board adopted the hearing officer's findings and ultimately issued its decision and order revoking petitioner's license, the board did not err in affirming the hearing officer's order denying petitioner's motion for change of hearing officer, because in light of the facts of the case and the plain language of the statute, the board's interpretation of § 61-1-7(C), that peremptory excusals must be exercised prior to the first of a series of hearings since the notices and hearings, together, constituted the disciplinary action against petitioner, was reasonable and representative of the obvious spirit of the statute.
Rauth v. N.M. Medical Bd.
, 2023-NMCA-059, cert. denied.
Am. Jur. 2d, A.L.R. and C.J.S. references.
— 51 Am. Jur. 2d Licenses and Permits §§ 60, 61.
53 C.J.S. Licenses §§ 43, 54, 55, 59.