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SB692 SUB1 Senate Bill 692 History

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COMMITTEE SUBSTITUTE

FOR

Senate Bill No. 692

(By Senator Kessler)

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[Originating in the Committee on the Judiciary;

reported March 31, 2009.]

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A BILL to amend and reenact §22A-5-1 and §22A-5-2 of the Code of West Virginia, 1931, as amended; and to amend said code by adding thereto two new sections, designated §22A-5-3 and §22A-5-4, all relating to creating a full-time administrative law judge for the Office of Miners' Health, Safety and Training; providing the method for appointment of members of the board; transferring powers to the board; requiring contested cases follow provisions of chapter twenty-nine-a of said code; and clarifying board's authority as to certain types of violations.

Be it enacted by the Legislature of West Virginia:
That §22A-5-1 and §22A-5-2 of the Code of West Virginia, 1931, as amended, be amended and reenacted; and that said code be amended by adding thereto two new sections, designated §22A-5-3 and §22A-5-4, all to read as follows:
ARTICLE 5. BOARD OF APPEALS.
§22A-5-1. Board of appeals.

There is hereby continued a board of appeals, consisting of three members. Two members of the board shall be appointed by the Governor, one person who by reason of previous training and experience may reasonably be said to represent the viewpoint of the working miners of the state, and one person who by reason of previous training and experience may reasonably be said to represent the viewpoint of the operators. When appointing the member representing the viewpoint of the working miners in the state, the Governor shall request from the major employee organization representing coal miners within the state a list of three nominees for the position on the board. The highest-ranking official within the major employee organization representing coal miners within this state shall submit a list of three nominees for the position on the board. The nominees shall have a background in health and safety. The Governor shall make the appointment from the lists of nominees submitted at his request. When appointing the member representing the viewpoint of the operators of the state, the Governor shall request from the major trade association representing operators in this state a list of three nominees for the position on the board. All nominees shall be persons with special experience and competence in health and safety. There shall be submitted with this list a summary of qualifications of each nominee. For purposes of this section, the major trade association representing operators in this state is that association which represents operators accounting for over one half of the coal produced in mines in this state in the year prior to the year in which the appointment is to be made. Should there be no major trade association representing operators accounting for over one half of the coal produced in mines in this state in the year prior to an appointment, the nominations shall be made by the largest trade association representing operators. The third person, who is chair of the board and who must not have had any connection at any time with the coal industry or an organization representing miners, is selected by the two members appointed by the governor. The term of the two office of members of the board appointed by the Governor is five years. The third person, who is the administrative law judge of the board, shall be appointed, compensated and removed pursuant to the provisions of section three of this article.
The function and duties of the board is to hear appeals, make determinations on questions of miners' entitlements due to withdrawal orders and appeals from discharge or discrimination, and suspension of certification certificates. In performing these functions, at least a quorum of the board shall be present and the board may act on these duties by a majority vote.
The chair administrative law judge of the board has the power to administer oaths and subpoena witnesses and require production of any books, papers, records or other documents relevant or material to the appeal inquiry.
The chair administrative law judge shall subpoena any witness requested by a party to a hearing to testify or produce books, records or documents. Any witness responding to a subpoena so issued shall receive a daily witness fee to be paid out of the state treasury upon a requisition of the State Auditor equivalent to the rate of pay under the wage agreement currently in effect plus all reasonable expenses for meals, lodging and travel at the rate applicable to state employees. Any full payments as hereinbefore specified shall be in full and exclusive payment for meals, lodging, actual travel and similar expenses and shall be made in lieu of any lost wages occasioned by such appearance in connection with any hearing conducted by the board.
Each member of the board The administrative law judge shall be paid in accordance with section three of this article, the two remaining board members shall be paid the same compensation and expense reimbursement as is paid to members of the Legislature for their interim duties as recommended by the Citizens Legislative Compensation Commission and authorized by law for each day or portion thereof engaged in the discharge of official duties. No reimbursement for expenses shall be made except upon an itemized account, properly certified by such members of the board. All reimbursement for expenses shall be paid out of the State Treasury upon a requisition upon the State Auditor.
Board members and the administrative law judge, before performing any duty, shall take and subscribe to the oath required by section five, article IV of the Constitution of West Virginia.
§22A-5-2. Powers transferred to the board of appeals.
(a) There are hereby transferred to the board of appeals all functions of the Director of the Office of Miners' Health, Safety and Training relating to the review of orders and notices as set forth in section seventeen, article one of this chapter.
(b) There are hereby transferred to the board of appeals all functions of the Director of the Office of Miners' Health, Safety and Training relating to the review of penalty assessments as set forth in subdivision (3), subsection (a), section twenty-one, article one of this chapter.
(c) Judicial review of decisions by the board of appeals shall be available and conducted in the same fashion as set forth in section nineteen, article one of this chapter.
(d) The board has jurisdiction to review violations issued under section sixty-six, article two of this chapter, but has no jurisdiction to alter the amount of the civil administrative penalty other than which the director has under that section.
§22A-5-3. Administrative law judge; appointment, term and vacancy; qualifications; compensation; conflicts of interest prohibited; removal.

(a) There is created the position of administrative law judge within the Office of Miners' Health, Safety and Training. The administrative law judge shall be a classified employee of the Office of Miners' Health, Safety and Training hired by the director: Provided, That the administrative law judge shall exercise independent judgment in deciding the cases before it.
(b) The administrative law judge shall be a citizen of the United States and a resident of this state who is admitted to the practice of law in this state.
(c) The salary of the administrative law judge shall be set by the Director of the Office of Miners' Health, Safety and Training created in section three, article one of this chapter. The salary shall be within the salary range for comparable administrative law judges as determined by the State Personnel Board created by section six, article six, chapter twenty-nine of this code.
(d) The administrative law judge shall:
(1) Devote his or her full time to the duties of the position;
(2) Not otherwise engage in the active practice of law or be associated with any group or entity which is itself engaged in the active practice of law: Provided, That nothing in this paragraph may be construed to prohibit the administrative law judge from being a member of a national, state or local bar association or committee, or of any other similar group or organization, or to prohibit the administrative law judge from engaging in the practice of law by representing himself, herself or his or her immediate family in their personal affairs in matters not subject to this article.
(3) Not engage directly or indirectly in any activity, occupation or business interfering or inconsistent with his or her duties as administrative law judge;
(4) Not hold any other appointed public office or any elected public office or any other position of public trust; and
(5) Not be a candidate for any elected public office, or serve on or under any committee of any political party.
(e) The Director of the Office of Miners' Health, Safety and Training may remove the administrative law judge only for cause.
§22A-5-4. Contested case procedure before the board.
(a) Notwithstanding any provision of this code to the contrary, including the procedural rules found in 37 CSR §1-1, et seq., all hearings before the board shall be conducted in accordance with the contested case provisions of article five, chapter twenty-nine-a of this code.
(b) All hearings before the board are open the public. All records of the board are public records.
(c) The administrative law judge has the power to rule on all pretrial motions and any other matters as are necessary to properly hear and decide cases before it.
(d) The administrative law judge shall write all orders, findings of fact and conclusions of law, decisions and opinions of the board.

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(NOTE: The purpose of this bill is to create a full-time administrative law judge to dispose of prehearing and post-hearing procedural matters, write opinions, orders and decisions regarding the cases heard by the board, and to administer the day-to-day activities of the board.

Strike-throughs indicate language that would be stricken from the present law, and underscoring indicates new language that would be added.

§§22A-5-3 and 22A-5-4 are new; therefore, strike-throughs and underscoring have been omitted.)
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