Introduction to the Albuquerque-Bernalillo County Air Quality Control Board

Recusal based on Conflict of Interest

• Concept: A conflict of interest is analyzed on a case by case basis.
• Concept: Under the NM Rules of Judicial Conduct, Rule 20-211, cmt. 1, “a judge is disqualified whenever the judge’s impartiality might reasonably be questioned, regardless of whether any of the specific provisions of [Rule 20-211(A)(1)-(5)] apply.”
• City: § 9-5-1-3(E), County 30-32(e):
• Any member of the Board who has a conflict of interest regarding a matter before the Board shall disqualify himself or herself from the discussion and shall abstain from the vote on such matter. A conflict of interest means any interest which may yield, directly or indirectly any monetary or other material benefit to the Board member or the member's spouse or minor child.

Recusal based on Conflict of Interest, cont’d.

• NMAC 20-11-81-12(B)(3)(a)
• A board member or a hearing officer shall not perform any
• function authorized by 20.11.81 NMAC regarding any matter in which a board member or a hearing officer:
• (i) has a personal bias or prejudice concerning a party or the
• outcome of a proceeding;
• (ii) has personal knowledge of disputed facts concerning the proceeding;
• (iii) is related to a party within the third degree of relationship;
• (iv) is an officer, director or trustee of a party or interested
• participant in the proceeding;
• (v) has a financial interest in the proceeding or facility that is
• the subject of the proceeding or has any other conflict of interest; or
• (vi) has performed prosecutorial or investigative functions in
• connection with a permitting action at issue in the proceeding.

Recusal Based on Conflict of Interest, cont’d.

• NM Code of Judicial Conduct, Rule 20-211 Disqualification
• (A) A judge shall disqualify himself or herself in any proceeding in which the judge’s impartiality might reasonably be questioned, including but not limited to the following circumstances:
• (1) The judge has a personal bias or prejudice concerning a party or a party’s lawyer, or personal knowledge of facts that are in dispute in the proceeding.
• (2)The judge knows that the judge, the judge’s spouse or domestic partner, or a person within the third degree of relationship to either of them, or the spouse or domestic partner of such a person, or a member of the judge’s staff is:
• (a) a party to the proceeding, or an officer, director, general partner, managing member, or trustee of a party; (b) acting as a lawyer in the proceeding; (c) a person who has more than a de minimis interest that could be substantially affected by the proceeding; or
• (d) likely to be a material witness in the proceeding.
• Cont’d: