A. A commissioner or hearing examiner shall self recuse in any adjudicatory proceeding in which the commissioner or hearing examiner is unable to make a fair and impartial decision or in which there is reasonable doubt about whether the commissioner or hearing examiner can make a fair and impartial decision, including:
(1) when the commissioner or hearing examiner has a personal bias or prejudice concerning a party or its representative or has prejudged a disputed evidentiary fact involved in a proceeding prior to hearing. For the purposes of this paragraph, "personal bias or prejudice" means a predisposition toward a person based on a previous or ongoing relationship, including a professional, personal, familial or other intimate relationship, that renders the commissioner or hearing examiner unable to exercise the commissioner's or hearing examiner's functions impartially;
(2) when the commissioner or hearing examiner has a pecuniary interest in the outcome of the proceeding other than as a customer of a party;
(3) when in previous employment the commissioner or hearing examiner served as an attorney, adviser, consultant or witness in the matter in controversy; or
(4) when, as a nominee for appointment to the office of public regulation commissioner, the nominee announced how the nominee would rule on the adjudicatory proceeding or a factual issue in the adjudicatory proceeding.
B. If a commissioner or hearing examiner fails to self recuse when it appears that grounds exist, a party shall promptly notify the commissioner or hearing examiner of the apparent grounds for recusal. If the commissioner or hearing examiner declines to self recuse upon request of a party, the commissioner or hearing examiner shall provide a full explanation in support of the refusal.
History: Laws 1998, ch. 108, § 18; § 8-8-18, recompiled and amended as § 62-19-7 by Laws 2020, ch. 9, § 22.
ANNOTATIONSCompiler's notes. — Laws 2020, ch. 9, § 22 recompiled and amended former 8-8-18 NMSA 1978 as part of Chapter 62, Article 19 NMSA 1978, effective January 1, 2023, contingent upon certification by the secretary of state that the constitution of New Mexico has been amended as proposed by a joint resolution of the first session of the fifty-fourth legislature (SJC/SRC/SJR Nos. 1 and 4, CA #1) at the general election to be held on November 3, 2020. The section number was assigned by the compiler.
The 2020 amendment, effective January 1, 2023, removed references to "candidate", and made certain technical amendments; and in Subsection A, Paragraph A(4), after "when, as a", deleted "candidate for" and added "nominee for appointment to the", after "office", added "of public regulation commissioner", and substituted each occurrence of "he" with "the nominee".
Recusal not warranted. — Commissioners properly declined to recuse themselves since the timing of their remarks indicated that they were based on the evidence adduced in the rate case, as well the direct testimony filed by the public service company of New Mexico (PNM) in the present case. Albuquerque Bernalillo Cnty. Water Util. Auth. v. N.M. Pub. Regulation Comm'n, 2010-NMSC-013, 148 N.M. 21, 229 P.3d 494.