SB0137

SENATE BILL 137

51st legislature - STATE OF NEW MEXICO - second session, 2014

INTRODUCED BY

Daniel A. Ivey-Soto and Zachary J. Cook

AN ACT

RELATING TO THE HUMAN RIGHTS COMMISSION; ALLOWING THE APPOINTMENT OF TWO MEMBERS FROM A COUNTY TO THE HUMAN RIGHTS COMMISSION; ALLOWING THE HUMAN RIGHTS COMMISSION TO HOLD A GRIEVANCE HEARING BY VIDEO CONFERENCE.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:

SECTION 1. Section 28-1-3 NMSA 1978 (being Laws 1969, Chapter 196, Section 3, as amended) is amended to read:

"28-1-3. HUMAN RIGHTS COMMISSION.--

A. There is created the "human rights commission" consisting of eleven members appointed by the governor with the advice and consent of the senate. Not more than six of the members shall be of the same political party. Not more than [one member] two members may be appointed from any one county. The governor shall designate a member to serve as [chairman] chair. The commission shall designate one of its members as vice [chairman] chair to preside in the absence or incapacity of the [chairman] chair.

B. The term of office of each member of the commission is for four years; however, of the commissioners first appointed, one shall be appointed for a term ending December 31, 1969, one for a term ending December 31, 1970, one for a term ending December 31, 1971 and two for terms ending December 31, 1972; provided that the two additional members added pursuant to this 1975 amendment shall be initially appointed for staggered terms of two and three years, respectively, so that one term ends on December 31, 1977 and one ends on December 31, 1978. The four additional commissioners added pursuant to this 1991 amendment shall be appointed for staggered terms; two shall be appointed for terms ending December 31, 1992, and two shall be appointed for terms ending December 31, 1993.

C. Any member chosen to fill a vacancy occurring otherwise than by expiration of term shall be appointed for the remainder of the unexpired term. Six members of the commission constitute a quorum to conduct business. Vacancies on the commission shall not impair the right of the remaining members to exercise the powers of the commission.

D. Each member of the commission shall be reimbursed, as provided in the Per Diem and Mileage Act, during the performance of official duties and shall receive no other compensation, perquisite or allowance."

SECTION 2. Section 28-1-10 NMSA 1978 (being Laws 1969, Chapter 196, Section 9, as amended) is amended to read:

"28-1-10. GRIEVANCE PROCEDURE.--

A. A person claiming to be aggrieved by an unlawful discriminatory practice and a member of the commission who has reason to believe that discrimination has occurred may file with the [human rights division of the labor department] bureau a written complaint that shall state the name and address of the person alleged to have engaged in the discriminatory practice, all information relating to the discriminatory practice and any other information that may be required by the commission. All complaints shall be filed with the [division] bureau within three hundred days after the alleged act was committed.

B. The [director] bureau shall advise the respondent that a complaint has been filed against the respondent and shall furnish the respondent with a copy of the complaint. The [director] bureau shall promptly investigate the alleged act. If the [director] bureau determines that the complaint lacks probable cause, the [director] bureau shall dismiss the complaint and notify the complainant and respondent of the dismissal. The complaint shall be dismissed subject to appeal as in the case of other orders of the commission.

C. If the [director] bureau determines that probable cause exists for the complaint, the [director] bureau shall attempt to achieve a satisfactory adjustment of the complaint through persuasion and conciliation. The [director] bureau and its staff shall neither disclose what has transpired during the attempted conciliation nor divulge information obtained during any hearing before the commission or a commissioner prior to final action relating to the complaint. An officer or employee of the [labor] workforce solutions department who makes public in any manner information in violation of this subsection is guilty of a misdemeanor and upon conviction shall be fined not more than one thousand dollars ($1,000) or imprisoned not more than one year.

D. A person who has filed a complaint with the [human rights division] bureau may request and shall receive an order of nondetermination from the [director] bureau without delay after the [division's] bureau's receipt of the complaint and in jointly filed cases', after the federal complaint has been closed. The order of nondetermination may be appealed pursuant to the provisions of Section 28-1-13 NMSA 1978.

E. In the case of a complaint filed by or on behalf of a person who has an urgent medical condition and has notified the [director] bureau in writing of the test results, the [director] bureau shall make the determination whether probable cause exists for the complaint and shall attempt any conciliation efforts within ninety days of the filing of the written complaint or notification, whichever occurs last.

F. If conciliation fails or if, in the opinion of the [director] bureau, informal conference cannot result in conciliation and the complainant has not requested a waiver of right to hearing pursuant to the provisions of Subsection [J] K of this section, the commission shall issue a written complaint in its own name against the respondent, except that in the case of a complaint filed by or on behalf of a person who has an urgent medical condition, who has notified the [director] bureau in writing of the test results and who so elects, the [director] bureau shall issue an order of nondetermination, which may be appealed pursuant to the provisions of Section 28-1-13 NMSA 1978. The complaint shall set forth the alleged discriminatory practice, the secretary's regulation or the section of the Human Rights Act alleged to have been violated and the relief requested. The complaint shall require the respondent to answer the allegations of the complaint at a hearing before the commission or hearing officer and shall specify the date, time and place of the hearing. The hearing date shall not be more than [fifteen] sixty or less than [ten] thirty days after service of the complaint. The complaint shall be served on the respondent personally or by registered mail, return receipt requested.

G. The hearing shall be held in the county where the respondent is doing business or the alleged discriminatory practice occurred or by video conference. If a party objects to a determination of the commission that the hearing be held by video conference, that party shall file a written objection to the commission within ten days after service of the complaint, and the hearing shall be held in person. The commission shall determine whether the in-person hearing will be held in the county where the respondent is doing business or where the alleged discriminatory practice occurred and shall issue the determination no less than ten days after service of the objection.

[G.] H. Within one year of the filing of a complaint by a person aggrieved, the commission or its director shall:

(1) dismiss the complaint for lack of probable cause;

(2) achieve satisfactory adjustment of the complaint as evidenced by order of the commission; or

(3) file a formal complaint on behalf of the commission.

[H.] I. Upon the commission's petition, the district court of the county where the respondent is doing business or the alleged discriminatory practice occurred may grant injunctive relief pending hearing by the commission or pending judicial review of an order of the commission so as to preserve the status quo or to ensure that the commission's order as issued will be effective. The commission shall not be required to post a bond.

[I.] J. For purposes of this section, "urgent medical condition" means any medical condition as defined by an appropriate medical authority through documentation or by direct witness of a clearly visible disablement that poses a serious threat to the life of the person with the medical condition.

[J.] K. The complainant may seek a trial de novo in the district court in lieu of a hearing before the commission, provided the complainant requests from the [director] bureau, in writing, a waiver of complainant's right to hearing within sixty days of service of written notice of a probable cause determination by the [director] bureau. The [director] bureau shall approve the waiver request and shall serve notice of the waiver upon the complainant and respondent. The complainant may request a trial de novo pursuant to Section 28-1-13 NMSA 1978 within ninety days from the date of service of the waiver. Issuance of the notice shall be deemed a final order of the commission for the purpose of appeal pursuant to Section 28-1-13 NMSA 1978."

SECTION 3. Section 28-1-11 NMSA 1978 (being Laws 1969, Chapter 196, Section 10, as amended) is amended to read:

"28-1-11. HEARING PROCEDURES.--

A. The respondent to a complaint made pursuant to Section 28-1-10 NMSA 1978 may file a written answer to the complaint, appear at the hearing, give testimony and be represented by counsel and may obtain from the commission subpoenas for any person or for the production of any evidence pertinent to the proceeding. The complainant shall be present at the hearing, either in person or by video conference pursuant to Subsection G of Section 28-1-10 NMSA 1978, and may be represented by counsel. Each party shall have the right to amend [his] the party's complaint or answer.

B. A panel of three members of the commission designated by the [chairman] chair shall sit, and a decision agreed upon by two members of the panel shall be the decision of the commission. However, no commissioner who has filed a complaint may sit on the panel hearing [his] the commissioner's complaint. Hearings also may be conducted by a hearing officer employed by the [human rights division of the labor department] bureau or, if the hearing officer is unavailable, one member of the commission may be designated by the [chairman] chair to act as a hearing officer. A hearing officer shall have the same powers and duties as a commissioner as set forth in Paragraph (2) of Subsection A of Section 28-1-4 NMSA 1978.

C. The complainant or [his] the complainant's representative shall present to the commission or the hearing officer the case supporting the complaint. No evidence concerning prior attempts at conciliation shall be received. The director shall not participate in the hearing, except as a witness.

D. The commission and the hearing officer shall not be bound by the formal rules of evidence governing courts of law or equity but shall permit reasonable direct examination and cross-examination and the submission of briefs. Testimony at the hearing shall be taken under oath and recorded by tape or otherwise. Upon the request of any party, testimony shall be transcribed, provided that all costs of transcribing shall be paid by the party so requesting. Each commissioner and hearing officer may administer oaths.

E. Upon the conclusion of a hearing conducted by a hearing officer, the hearing officer shall prepare a written report setting forth proposed findings of fact and conclusions of law and recommending the action to be taken by the commission. The hearing officer shall submit the report to a review panel consisting of no more than three members of the commission designated by the [chairman] chair. No commissioner may sit on the panel reviewing the hearing officer's report issued in connection with a complaint filed by the commissioner. A decision by a majority of the members of the review panel shall be the decision of the commission. If the commission finds from the evidence presented at any hearing held pursuant to this section that the respondent has engaged in a discriminatory practice, it shall make written findings of fact, conclusions of law and its decision based upon the findings of fact and conclusions of law. The commission may adopt, modify or reject the proposed findings of fact and conclusions of law and the action recommended by the hearing officer. Within five days after any order is rendered by the commission following a hearing, the commission shall serve upon each party of record and [his] the party's attorney, if any, a written copy of the order by certified mail to the party's address of record. All parties shall be deemed to have been served on the tenth day following the mailing. As part of its order, the commission may require the respondent to pay actual damages to the complainant and to pay reasonable [attorneys'] attorney fees, if the complainant was represented by private counsel, and to take such affirmative action as the commission considers necessary, including a requirement for reports of the manner of compliance.

F. If the commission finds from the evidence that the respondent has not engaged in a discriminatory practice, it shall make written findings of fact and serve the complainant and respondent with a copy of the findings of fact and with an order dismissing the complaint."

SECTION 4. EFFECTIVE DATE.--The effective date of the provisions of this act is July 1, 2014.

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