Senate Bill No. 129
(By Senator Anderson)
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[Introduced January 14, 1998; referred to the Committee
on the Judiciary; and then to the Committee on Finance.]
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A BILL to amend chapter twenty-nine-a of the code of West
Virginia, one thousand nine hundred thirty-one, as amended,
by adding thereto a new article, designated article eight,
relating generally to the creation of an office of
administrative hearings in the executive branch of state
government; specifying applicability and exceptions;
defining terms; specifying the qualifications of chief
administrative law judge; nominating persons for chief
administrative law judge; filling vacancies; establishing an
administrative law commission; making appointments to the
administrative law commission; specifying terms of the
commissioners; filling vacancies on the commission;
compensating commissioners; requiring the cooperation of
state agencies with the commission; providing for the
confidentiality of information and records furnished to the commission; submitting list of names of persons qualified
for chief judge to the governor; requiring the advice and
consent of the Senate for the appointment of chief judge;
requiring the commission to assist the chief judge in
carrying out his or her duties; providing for a system of
compensation for adjudicators to be established by the chief
judge and the administrative law commission; providing that
promotions be based on ability and performance; providing
that all adjudicators be part of the classified service;
providing for discipline of adjudicators; establishing a
complaint resolution board; transferring adjudicatory
functions of personnel, equipment and funds of affected
state agencies to the office of administrative hearings;
providing that all orders, determinations, rules,
regulations, certificates, licenses and privileges in effect
prior to this article becoming effective shall remain in
effect; establishing an evaluation system for adjudicators;
establishing qualifications for adjudicators and providing
exceptions; establishing the power and duties of the chief
administrative law judge; setting forth the nature and type
of proceedings over which adjudicators may preside;
providing for the use of contract adjudicators; establishing
the powers of adjudicators relating to conducting hearings;
providing that decisions of adjudicators are final; providing for the continued policymaking authority of
agencies; providing for remand of cases which require
creation of policy rather than application of policy;
providing for appeal of decisions to circuit court;
providing that this article is inapplicable to adjudications
commenced prior to the effective date of the article; and
providing for the repeal of acts or parts of acts which are
inconsistent with this article.
Be it enacted by the Legislature of West Virginia:
That chapter twenty-nine-a of the code of West Virginia, one
thousand nine hundred thirty-one, as amended, be amended, by
adding thereto a new article, designated article eight, to read
as follows:
ARTICLE 8. OFFICE OF ADMINISTRATIVE HEARINGS.
§29A-8-1. Creation, applicability and exceptions.
(a) There is hereby created, as an independent unit in the
executive branch of the state government, an office of
administrative hearings.
All agencies that conduct administrative hearings or
adjudications as defined in section two of this article are
subject to the provisions of this article unless otherwise
exempted in this article.
(b) This article does not apply to the governor; any unit of
the judicial branch; any unit of the legislative branch; cases involving the conduct of inmates or other persons admitted to
public institutions; hearings conducted by the West Virginia
board of parole or the conduct of persons in military service.
(c) Until the first day of July, two thousand, the governor
may temporarily exempt an agency, from this article.
(d) Any agency that is not required to submit cases for
hearing to the office of administrative hearings may request that
a case be heard by an adjudicator from the office of
administrative hearings. The office of administrative hearings
shall charge the requesting agency a fee for services rendered
which is sufficient to cover the actual cost of the services
provided.
§29A-8-2. Definitions.
Unless the context clearly requires otherwise, the
definitions in this section apply throughout this article:
(1) "Action" means an order, decree, decision, determination
or ruling by an administrative agency affecting permits,
licenses, certifications, personal or property rights,
privileges, immunities, duties, liabilities or obligations of a
person.
(2) "Adjudication" or "administrative hearing" means a
trial-type proceeding, whether conducted pursuant to article five
of this chapter, other statutes, or agency regulations or
practice, that offers an opportunity for an oral, fact-finding hearing before an adjudicator.
(3) "Adjudicator" is a person who presides over
administrative hearings or proceedings for alternative dispute
resolution, takes evidence, issues a decision or mediates a
resolution. An adjudicator may be an administrative law judge
(ALJ) a hearing examiner, or any other presiding official who is
qualified to so act. The functions of an adjudicator include,
but are not limited to: (i) Making findings of fact; (ii) making
decisions regarding federal and State statutory law, rules
regulations and agency policy; (iii) writing opinions that
marshal the facts and frame the issues in a comprehensible
fashion; (iv) conducting adjudicatory proceedings so as to assure
a full and informative record; and (v) conducting alternative
dispute resolution proceedings.
(4) "Administrative law judge" means an attorney at law
appointed by the chief administrative law judge to conduct or
preside at administrative hearings and other proceedings as
provided in this article.
(5) "Agency" or "administrative agency" means any
administrative unit of state government, including any authority,
board, bureau, commission, committee, division, section or office
authorized by law to conduct adjudicatory proceedings, except
those in the legislative or judicial branches and the office of
the governor.
(6) "Alternative dispute resolution" means any procedure
that is used in lieu of an administrative hearing to resolve
issues in controversy, including, but not limited to, settlement,
negotiations, conciliation, facilitation, mediation, fact
finding, mini-trials, and arbitration, or any combination
thereof.
(7) "Chief judge" means the chief administrative law judge
appointed and serving pursuant to the provisions of sections
three and four of this article.
(8) "Commission" means the administrative law commission
established in accordance with the provisions of section four of
this article.
(9) "Hearing examiner" means a non-attorney appointed by the
chief administrative law judge to conduct or preside at
administrative hearings and other proceedings as provided in this
article.
(10) "Office" means the office of administrative hearings.
§29A-8-3. Chief administrative law judge.
(a) The chief administrative law judge, or chief judge, is
the chief administrative officer of the office and the presiding
judge of the office.
(b) To be appointed as chief judge, a nominee for the
position must possess the following qualifications:
(1) A minimum of five years experience as a practicing attorney at law;
(2) Current active membership in the West Virginia State
Bar; and
(3) A minimum of two years experience in the preparation,
presentation or hearing of actions, or in making decisions on the
basis of the record of those hearings, originating before
administrative agencies or regulatory bodies at the federal,
state or local level.
(c) The chief judge shall be nominated as prescribed in
section four of this article, and shall be appointed by the
governor with the advice and consent of the Senate. The chief
judge shall serve for a term of six years or until a successor is
appointed and qualified to serve. A chief judge may be
reappointed upon the expiration of his or her term, by and with
the advice and consent of the Senate, if nominated for
reappointment in accordance with the provisions of section four
of this article.
(d) If the office of chief judge is vacant, the judge who is
senior in length of service as a judge shall serve as acting
chief judge until such vacancy is filled. Any vacancy occurring
in the office of the chief judge shall be filled in the same
manner as the original appointment, but only for the unexpired
term.
(e) The chief judge shall devote full time to the duties of the office and shall receive a salary as provided by law.
§29A-8-4. Administrative law commission.
(a) There is established an administrative law commission
for the office of administrative hearings. The administrative
law commission shall consist of seven members selected in
accordance with the provisions of subsection (b) of this section.
The commission shall submit to the governor the names of
qualified nominees for appointment to the position of chief
judge.
(b) Each of the following persons shall appoint one person
to the administrative law commission on or before the first day
of August, one thousand nine hundred ninety-eight:
(1) The chief justice of the supreme court of appeals;
(2) The president of the senate;
(3) The speaker of the house of delegates;
(4) The president of the West Virginia state bar;
(5) The commissioner of the bureau of employment programs;
(6) The attorney general; and
(7) The dean of the college of law of West Virginia
University.
At least one but not more than three of the commission
members shall be attorneys who practice before the office of
administrative hearings.
(c)(1) The persons first appointed to the commission pursuant to the provisions of subdivisions (5) and (6),
subsection (b) of this section shall serve for a period of one
year;
(2) The persons first appointed to the commission pursuant
to the provisions of subdivisions (2) and (3), subsection (b) of
this section shall serve for a period of two years;
(3) The persons first appointed to the commission pursuant
to the provisions of subdivisions (1), (4) and (7), subsection
(b) of this section shall serve for a period of three years.
(4) Each person appointed after the initial appointments
made in accordance with the provisions of this subsection shall
be appointed for a term of three years.
(d)(1) Subject to the provisions of this subsection, a
vacancy on the commission shall be filled in the same manner as
the original appointment. An officer or employee of the state of
West Virginia may be a member of the commission. The commission
shall select one of its members to be the chairman.
(2) Any member appointed to serve an unexpired term which
has arisen by virtue of the death, disability, retirement, or
resignation of a member shall be appointed only for the unexpired
term, but shall be eligible for reappointment.
(e)(1) A member of the commission who is an officer or
employee of the State of West Virginia shall not receive
additional compensation, other than travel expenses, while serving as a member of the commission. Other members of the
commission shall receive reasonable compensation for each day he
or she is engaged in the actual performance of his or her duties
as a member of the commission and such traveling expenses as are
incurred in the performance of his or her duties. Payment for
traveling expenses shall be made consistent with state travel
rules. A member shall not be considered an officer or employee
of the State of West Virginia solely by reason of his or her
service as a member of the commission.
(2) All agencies of the State of West Virginia shall provide
to the commission the assistance and facilities that the
commission requests, including access to records and other
information pertaining to prospective nominees, to enable the
commission to perform its functions. All furnished records and
information shall be treated as privileged and confidential by
the commission.
(3) Funds appropriated to conduct the general operations of
the office may be expended to defray the expenses of the
commission.
(f)(1) For the initial appointment of the chief judge, the
commission, on or before the thirty-first day of October, one
thousand nine hundred ninety-eight, shall submit to the governor
for appointment a list of the names of three persons qualified to
fill the vacancy.
(2) Not less than sixty days before the term of the chief
judge expires, the commission shall submit to the governor for
appointment a list of the names of three persons, one of who may
be the incumbent chief judge, who are qualified to be the chief
judge.
(3) In the event of a subsequent vacancy in the position
prior to the end of the term of the chief judge, within sixty
days after notification that a vacancy will be occurring or has
occurred the commission shall submit to the governor for
appointment a list of the names of three persons qualified to
fill the vacancy.
(4) The governor shall appoint the chief judge, by and with
the advice and consent of the Senate, from the list provided by
the commission. The initial appointee shall serve as the
temporary chief administrative law judge until such time as the
Senate approval of a chief judge is received.
(g) The commission shall advise the chief administrative law
judge in carrying out his or her duties, including but not
limited to: (i) Identifying issues of importance to the office
of administrative hearings that should be addressed by the chief
administrative law judge; (ii) reviewing issues and problems
relating to administrative hearings and the administrative
process; and (iii) reviewing and commenting upon policies and
rules proposed by the chief administrative law judge.
(h) The commission shall advise the governor and the
Legislature as to those agencies for which a continuing exemption
under section (1) of this article should be maintained as
consistent with the purposes of this article.
§29A-8-5. Compensation and promotion.
(a) In cooperation with the administrative law commission,
the chief judge shall establish an administrative law judge
salary system which places each administrative law judge in one
of three levels, designated ALJ-3, ALJ-2 and ALJ-1. Within these
levels salaries for administrative law judges shall be
established which are no greater than ninety percent nor less
than fifty percent of the salary of circuit court judges. The
salary of the chief administrative law judge shall be set by the
governor within the prescribed levels for administrative law
judges, commiserate with the additional duties and
responsibilities of the position.
(b) In cooperation with the administrative law commission,
the chief judge shall establish a hearing examiner salary system
consisting of not less than three levels designated HE-3, HE-2
and HE-1. Within these levels salaries for hearing examiners
shall be established which are no greater than the highest salary
level for magistrates as set forth in section three in section
three, article one, chapter fifty of this code.
(c) It is the intent of the Legislature that a multi-grade system of hiring and promotion be established and maintained in
the office, and that individual adjudicators be paid according to
their abilities and performance, as shown by evaluations
conducted in accordance with the provisions of subdivision (14),
section nine of this article.
§29A-8-6. Professional employees; removal; discipline; creation
of complaint resolution board.
(a) All adjudicators in the office of administrative
hearings shall be professionals who are members of the classified
service.
(b) Except as provided in subsection (c) of this section:
(1) An adjudicator may not be removed, suspended,
reprimanded, or disciplined except for misconduct, incompetence,
or neglect of duty but may be removed or suspended for physical
or mental disability which can not be reasonably accommodated and
prohibits him or her from performing his or her assigned duties;
and
(2) An action specified in subdivision (1) of this
subsection may be taken against an adjudicator only after the
chief administrative law judge has filed a notice of adverse
action against the adjudicator and has determined, after an
opportunity for the adjudicator to meet with the chief
administrative law judge, that there is good cause to take
action.
(c) Under legislative rules proposed for promulgation by the
chief judge in accordance with the provisions of chapter
twenty-nine-a of this code, a complaint resolution board shall be
established within the office to consider and recommend
appropriate action to be taken upon complaints against the
official conduct of adjudicators.
(d) The complaint resolution board shall consist of three
adjudicators from the office, selected by the chief judge and two
members of the state bar who shall be appointed by the president
of the West Virginia state bar. Of the members of the board
initially appointed by the chief judge, the first appointment
shall end in twelve months, the second in eighteen months and the
third in two years. Of the members of the board appointed by the
president of the West Virginia state bar, the first appointment
shall end in one year and the second appointment shall end in two
years. All subsequent appointments shall be for a term of two
years. In the event a vacancy or disqualification occurs, the
member shall be replaced in the same manner as the original
appointment. The chief judge and the immediate supervisor of the
adjudicator involved in the complaint may not serve on the board.
(e) A complaint of misconduct on the part of an adjudicator
must be made in writing. The complaint shall be filed with the
chief judge, or it may be originated by the chief judge on his or
her own motion. The chief judge shall refer the complaint to the board. The complaint must be referred as it was originally
received or drawn and may not be accompanied by any other
material. The adjudicator who is the subject of the complaint
shall be given notice of the complaint and shall be given the
opportunity to respond in writing to the board.
(f) The board shall inquire into the complaint and shall
render a report on the complaint to the chief administrative law
judge. A copy of the report shall be provided concurrently to
the adjudicator who is the subject of the complaint. The report
shall be advisory only, except that if the chief administrative
law judge decides to act contrary to the report, based on the
matters contained in the complaint, he or she may do so only upon
a finding that the recommendation of the report is unwarranted by
the facts, is not supported by substantial evidence, or is
arbitrary, capricious or otherwise not in conformity to the law.
(g) In the event a complaint is against the chief judge the
recommendation of the board shall be forwarded to the commission
and the governor for action consistent with this section.
(h) The proceedings, deliberations, and reports of the board
and the contents of complaints under this section shall be
treated as privileged and confidential. Documents considered by
the board and reports of the board are exempt from disclosure or
publication.
§29A-8-7. Transfer of functions to the office.
(a) All functions performed prior to the thirtieth day of
June, one thousand nine hundred ninety-nine, by the
administrative law judges, hearing officers or other persons
previously utilized by the agencies subject to the provisions of
this article to conduct administrative hearings or other
proceedings are hereby transferred to the office of
administrative hearings.
(b) With the consent of the agencies concerned, the office
of administrative hearings may use the facilities and the
services of officers, employees, and other personnel of agencies
from which functions and duties are transferred to the office for
as long as they may be needed to facilitate the orderly transfer
of those functions and duties under this article.
(c) The full-time personnel utilized for any form of
administrative adjudication, assets, liabilities, contracts,
property, records, and unexpended balances of appropriations,
authorization, allocations, and other funds employed, held, used,
arising from, available or to be made available, in connection
with the functions, offices, and agencies transferred by this
article are correspondingly transferred to the office of
administrative hearings for appropriate allocation.
(d) The transfer of personnel pursuant to subsection (b) of
this section shall be without reduction in compensation.
(e) The secretary of each department or the agency head of agencies effected by this article shall provide for such further
measures and dispositions as may be necessary to effectuate the
purposes of this article, and for the termination of the offices
and agencies specified in this article.
(f) All orders, determinations, rules, regulations,
certificates, licenses, and privileges which have been issued,
made, granted, or allowed to become effective in the exercise of
any duties, powers, or functions which are transferred under this
article and are in effect at the time this article becomes
effective shall continue in effect according to their terms until
modified, terminated, superseded, set aside, or repealed by the
office of administrative hearings of the state of West Virginia
or an adjudicator of the office in the exercise of authority
vested in the office or its members by this article, by a court
of competent jurisdiction, or by operation of law.
(g) This article does not affect any proceeding before any
agency or component of an agency which is pending at the time
this article takes effect. Such a proceeding shall be continued
before the office of administrative hearings or, to the extent
the proceeding does not relate to functions so transferred, shall
be continued before the agency in which it was pending on the
thirtieth day of June, one thousand nine hundred ninety-nine.
(h) No suit, action, or other proceeding commenced on or
before the thirtieth day of June, one thousand nine hundred ninety-nine abates by reason of the enactment of this article.
§29A-8-8. Adjudicators; evaluation.
(a) Adjudicators shall be hired and have their duties
assigned by the chief administrative law judge. At least once
during the first year of employment and periodically thereafter,
each adjudicator shall be subject to a program of evaluation as
delineated in subsection (14), section nine of this article. The
chief judge shall establish a staggered schedule for evaluating
all adjudicators in the office at least once each year.
(b) Except as otherwise provided in subsection (c) of this
section, an administrative law judge appointed by the chief
administrative law judge shall have a minimum of three years
experience as a practicing attorney at law and be a current
active member of the West Virginia State Bar.
(c) A person who served as a full-time administrative law
judge or hearing examiner for an agency subject to the provisions
of this article prior to being transferred to the office of
administrative hearings shall not be required to have been an
attorney or, if an attorney, shall not be required to have been
an attorney for three years in order to serve as an adjudicator
in the office.
§29A-8-9. Powers and duties of the chief administrative law
judge.
The following powers and duties are vested in the chief
administrative law judge of the office of administrative
hearings, and shall be performed by the chief judge or by the
employees of the office as the chief judge designates:
(1) Administering and causing the work of the office to be
performed with efficiency, uniformity, and justice including, as
necessary, assignment of cases on the basis of subject matter,
expertise and case complexity;
(2) Appointing such clerical and other specialized or
technical personnel as may be necessary for the conduct of the
office, these employees shall be members of the classified
service;
(3) Assigning and reassigning personnel to employment within
the office;
(4) Directing and supervising the activities of
administrative law judges, hearing examiners and other employees
of the office;
(5) Accepting and expending funds and grants;
(6) Developing a code of professional responsibility for
adjudicators, rules of evidence, and procedures for
administrative hearings and other proceedings;
(7) Conducting, or otherwise providing for the conduct of,
studies and research into methods of assuring improvements in the
operation of the office of administrative hearings;
(8) Proposing for promulgation, in accordance with the
provisions of article three of this chapter, the rules for the
prompt implementation and coordinated administration of this
article, as may be required or appropriate. The initial rules
may be filed as emergency rules;
(9) Employing the services of the agencies effected by this
article and of the employees of the agencies in the manner and
extent as may be agreed upon by the chief judge and the chief
executive officer of the agency in order to carry out the intent
of this article;
(10) Hiring administrative law judges and hearing examiners
to fulfill the duties prescribed in this article. The chief
administrative law judge may conduct hearings and other
proceedings set forth in this article;
(11) Contracting with qualified individuals to serve as
administrative law judges for specific hearings. Those
individuals shall be compensated for their services on a
contractual basis for each hearing. The compensation shall be
determined in advance by the chief administrative law judge with
the approval of the administrative law commission. Adjudicators
appointed pursuant to this procedure shall have the same
qualifications for appointment as permanent adjudicators;
(12) Securing, compiling and maintaining all records of
hearing decisions issued and decisions of alternative dispute resolutions undertaken pursuant to this article, and the
reference materials and supporting information as may be
appropriate;
(13) Developing and maintaining a program for the continuing
training, cross-training and education of adjudicators, including
but not limited to research, technical assistance, technical and
professional publications, compiling and disseminating
information and advising of changes in the law relative to their
duties;
(14) Developing and implementing a program of judicial
evaluation to aid in the performance of his or her duties. This
program of evaluation, for all adjudicators, shall focus on three
areas of judicial performance: Competence, productivity, and
demeanor. It shall include consideration of: Industry and
promptness in adhering to schedules, making rulings and rendering
decisions; tolerance, courtesy, patience, attentiveness, and
self-control in dealing with litigants, witnesses and counsel,
and in presiding over adjudications; legal skills and knowledge
of the law and new legal developments; analytical talents and
writing abilities; settlement skills; quantity, nature and
quality of caseload disposition; impartiality and
conscientiousness. The chief judge shall develop standards and
procedures for this program, which shall include taking comments
from litigants and lawyers who have appeared before an adjudicator. The methods used by the adjudicator, but not the
result arrived at, may be used in evaluating an adjudicator.
Before implementing any action based on the findings of the
evaluation program, the chief judge shall discuss the findings
and the proposed action with the effected adjudicator;
(15) Promulgating and enforcing rules for reasonable
sanctions, including assessments of costs and attorneys' fees
which may be imposed on a party, an attorney or other
representative of a party who, without just excuse, fails to
comply with any procedural order or with any standard or rule
applying to an adjudication and including the imposition of a
fine not to exceed one thousand dollars for misconduct which
obstructs or tends to obstruct the conduct of adjudications.
§29A-8-10. Assignment of adjudicators or persons not employees
of office by special appointment; powers of
adjudicators.
(a) Adjudicators shall be assigned by the chief judge to
preside over proceedings wherein the issue is the validity of an
action of an administrative agency. Such proceedings include,
but are not limited to, the following:
(1) An application for review of the action of an agency
which will result in the denial, modification, suspension or
revocation of a permit, license, or registration;
(2) An application for review of an action of an agency
which constitutes: (i) A notice of a violation of statutory or
regulatory law; (ii) an order to cease or modify activities or
operations; or (iii) an order which vacates or terminates a prior
order or authorization;
(3) An application for review of an assessment of a civil
penalty or penalties; and
(4) Any other application for review authorized or required
by law, whether denominated as an application, appeal, complaint,
petition or otherwise, that requires a hearing to be held on the
issue of the validity of a determination or ruling by an
administrative agency affecting personal or property rights,
privileges, immunities, duties, liabilities or obligations of a
person.
(b) A person who is not an employee of the office may be
specially appointed and assigned by the chief judge to preside
over a specific adjudication.
(c) Each adjudicator has and may exercise the powers
conferred upon the chief judge to the extent that the chief judge
delegates them by rule.
(d) Each adjudicator has all powers necessary to the conduct
of fair, expeditious, and impartial hearings, including the
following:
(1) To administer oaths and affirmations;
(2) To issue subpoenas authorized by law;
(3) To rule on offers of proof and receive relevant
evidence;
(4) To regulate the course of the hearing and the conduct of
persons at the hearing;
(5) To hold conferences for the settlement or simplification
of the issues by consent of the parties or by the use of
alternative dispute resolution;
(6) To inform the parties as to the availability of one or
more methods of alternative dispute resolution, and encourage the
use of those methods;
(7) To require the attendance at any conference held
pursuant to subdivision (5) of this subsection of at least one
representative of each party who has the authority to negotiate
concerning resolution of the issues in controversy;
(8) To dispose of procedural motions;
(9) To make decisions;
(10) To call and question witnesses;
(11) To impose appropriate sanctions against any party or
person failing to obey an order, refusing to adhere to reasonable
standards of orderly and ethical conduct, or refusing to act in
good faith; and
(12) To take any other action authorized by the chief judge
which is within the authority of the chief judge to delegate or is within the power of the agency from which the case or
proceeding arose.
(e) The decisions rendered by adjudicators of the office of
administrative hearings are final and binding on the parties.
Any aggrieved party may appeal an adverse decision to the Circuit
Court of Kanawha County or the county where the dispute arose in
accordance with the provisions of article five of this chapter.
(f) Nothing in this article shall be construed to deprive
the head of any agency of the authority to determine and adopt
agency policy. In those instances where existing policy would
not apply or adequately resolve one or more issues in a case that
would otherwise be within the jurisdiction of the office, the
agency may petition the office for remand of the case. The
petition must fully explain the policy considerations which
remove the case from the jurisdiction of the office. The
petition must be served on all interested parties. Any party may
file a response in opposition or support of the petition. The
office must decide jurisdictional questions within ten days of
receipt of all evidence and arguments.
§29A-8-11. Inapplicability of article to adjudication initiated
prior to effective date.
Nothing in this article shall be construed to affect the
conduct of any adjudication initiated prior to the effective date
of this article, or the making of any adjudicatory decision in such adjudication.
NOTE: The purpose of this bill is to create the Office of
Administrative Hearings.
This article is new; therefore, strike-throughs and
underscoring have been omitted.