CITY OF ALBUQUERQUE
TWENTY SIXTH COUNCIL
COUNCIL BILL NO. O-25-72 ENACTMENT NO. ________________________
SPONSORED BY: Joaquín Baca, by request
ORDINANCE
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Amending ROA 1994, Sections 2-7-8-3, 2-7-8-7, 2-7-8-8, And 2-7-8-9 Of The Independent Hearing Office To Clarify The Procedure For Appeals (Baca, by request)
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WHEREAS, the current City Ordinance governing the conduct of the Independent Hearing Office includes typographical errors; and
WHEREAS, amending the ordinance will align with the Independent Hearing Office’s best practices; and
WHEREAS, the amendments to this ordinance provide clarity to the public regarding their rights and the obligations of the Independent Hearing Office in response to requests for hearing and notices of appeals.
BE IT ORDAINED BY THE COUNCIL, THE GOVERNING BODY OF THE CITY OF ALBUQUERQUE:
SECTION 1. Section 2-7-8-3, of the IHO Ordinance is amended as follows:
§ 2-7-8-3 CITY CLERK; POWERS AND DUTIES.
(A) The City Clerk shall:
(1) Adopt and promulgate rules pertaining to administrative hearings;
(2) Adopt and promulgate a hearing officer code of conduct;
(3) Oversee the [administrative hearings office] [Independent Hearing Office;]
(4) Assign and distribute the work of the [Independent Hearing O][o]ffice after considering the knowledge and experience of particular hearing officers, efficiency in the hearing process and potential conflicts of interest; [and]
[(5) Reject appeals where the Independent Hearing Office or a board staffed by the Independent Hearing Office lacks jurisdiction over the appeal or hearings]
[(B) The City Clerk may:]
[(5) ][(1) Promulgate rules] [Set] [setting] fees for filing of appeals or requests for hearings under city ordinances or as otherwise provided by law;
[(6) Reject appeals where the office or a board staffed by the office lacks jurisdiction over the appeal or hearings; and]
[(7)] [(2)] [Refer] [Allow the parties to settle] matters [for mediation] prior to [scheduling] a hearing on the merits[.][; and]
[(B) The City Clerk may] [(3)] [w][W]ork with city departments[,] [and] boards[,] or other governmental entities to conduct hearings on their behalf pursuant to their procedures as provided for by a memorandum of understanding.
SECTION 2. Section 2-7-8-7, of the IHO Ordinance is amended as follows:
§ 2-7-8-7 REQUEST FOR HEARING AND NOTICE OF SETTING.
(A) A party seeking a hearing or appeal in accordance with this ordinance shall file a request for a hearing or a notice of appeal with the City Clerk. The party requesting the hearing or appeal shall provide the City Clerk with their mailing address, telephone number, and, if available, an e-mail address.
(B) The request for hearing or notice of appeal shall be written[;] [and:]
[(i)] identify the parties; [state the authority for the request or appeal;] identify the action being challenged; state the remedy the person is seeking; and be signed under oath or affirmation attesting to the truth of the information contained therein[.][; and]
[(ii) the document citing the basis for the appeal shall be attached, such as the citation.]
(C) The request for hearing or notice of appeal shall be filed within 15 days of receipt of the notice advising a person of their right to a hearing or appeal.
[(D) The request for hearing or notice of appeal shall be accompanied by a filing fee set by the City Clerk pursuant to ROA §§ 2-15-1 to 2-15-5.]
[(E)] [(D)] A request for hearing or notice of appeal is not valid until received by the City Clerk [and any filing fee required by the Rules promulgated pursuant to this Ordinance] [have and the filing fee] has been paid [in accordance with ROA 1994, § 2-7-8-8(C)-(D)].
[(F)] [(E)] Upon receipt of the request for hearing or notice of appeal, the City Clerk shall designate a hearing officer and schedule the time and place for the hearing. The City Clerk shall serve on the parties the notice of hearing and underlying request for hearing or notice of appeal. Service of process of notice shall be set by rules promulgated by the City Clerk.
SECTION 3. Section 2-7-8-8, of the IHO Ordinance is amended as follows:
§ 2-7-8-8 DISQUALIFICATION.
(A) Excusal for cause. Hearing officers are required to disclose on the record to the parties any matter that could be considered a conflict of interest with the hearing officer's duty to render fair and impartial decisions. Once such a disclosure has been made, a party to that proceeding may, but are not obligated to, waive such a potential or apparent conflict. If the parties do not waive the potential or apparent conflict, the hearing officer shall recuse [himself] [themself] unless the hearing officer rules that the conflict will not prevent a fair hearing. If the hearing officer recuses [himself] [themself], the City Clerk shall select an alternate hearing officer and deliver a notice of alternate assignment and resetting to the parties in accordance with ROA 1994, § 2-7-8-[8(E)][7(E)(F)].
(B) Peremptory excusal. [No hearing officer in any proceeding pursuant to this ordinance may be peremptorily excused,][There shall be no peremptory disqualification of a hearing officer in any proceeding pursuant to this ordinance] except [in the case of a personnel hearing or] as otherwise [provided] [permitted] [for] by applicable law.
[(i)] Each party may peremptorily excuse one personnel hearing officer within ten days [after receiving] [of the receipt of the] notice of [a personnel] hearing[.] [by filing a] [The]peremptory excusal [shall be filed] with the [City Clerk] [IHO] [and served]. [The party requesting the excusal shall serve notice of the peremptory excusal] on all other parties. Upon [receipt of] [receiving] a peremptory excusal, the [IHO] [City Clerk] shall select an alternate hearing officer[,] [and] deliver a notice of alternate assignment[,] [and] reset[ting] [the personnel hearing, and serve notice] to [all] [the] parties in accordance with ROA 1994, § 2-7-8-[7(E)(F)][8(E)]. Except for non- substantive communication [involving] [regarding] scheduling or procedure, a party shall not excuse a hearing officer after the [personnel] hearing has begun or after the [personnel] hearing officer has performed any discretionary act in the matter.
SECTION 4. Section 2-7-8-9, of the IHO Ordinance is amended as follows:
§ 2-7-8-9 HEARING.
(A) Applicability of rules of civil procedure and rules of evidence. In the absence of a specific provision of applicable law governing an action, the hearing officer may look to the New Mexico Rules of Civil Procedure, NMRA 1- 001 et seq., and the New Mexico Rules of Evidence, NMRA 11-101 et seq., for guidance. No provision of the rules of civil procedure shall be construed to extend or otherwise modify the authority and jurisdiction[of the IHO].
(B) Procedural rules. The City Clerk shall promulgate procedural rules for hearings pursuant to this Ordinance.[These rules should include rules of discovery, evidence, and any other rule the City Clerk deems necessary to ensure a full, fair, impartial, and expeditious hearing.]
(C) Final decision. The hearing officer shall issue a final written decision within 30 days of the hearing, unless the City Clerk or hearing officer provides additional notice of when a final written decision will be issued. Failure to issue a written decision will not result in a default judgment to either party.
(D) Record proper. The record in an administrative hearing shall include, at a minimum:
(1) The notices, pleadings, motions and intermediate rulings;
(2) The documentary evidence offered and admitted;
(3) A final written decision; and
(4) The recording or transcript of the hearing.
(E) Transcript. Administrative hearings shall be electronically recorded. A party may arrange for a stenographic recording of the hearing at their own expense.
(F) Appeals. An appeal may be taken from any final order issued by the hearing officer by filing a petition for a writ of certiorari to the District Court of the Second Judicial District within 30 days.
SECTION 5. SEVERABILITY CLAUSE. If any section, paragraph, word or phrase of this Ordinance is for any reason held to be invalid, or unenforceable by any court of competent jurisdiction, such decision shall not affect the validity of the remaining provisions of this ordinance. The Council hereby declares that it would have passed this Ordinance and each section, paragraph, sentence, clause, word or phrase thereof irrespective of any provision being declared unconstitutional or otherwise invalid.
SECTION 6. COMPILATION. SECTIONS 1, 2, 3, and 4 of this Ordinance shall amend, be incorporated in, and compiled as part of the Revised Ordinances of Albuquerque, New Mexico, 1994.
SECTION 7. EFFECTIVE DATE. This Ordinance shall take effect five (5) days after publication by title and general summary.