Senate Bill No. 739
(By Senator Chafin)
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[Introduced February 23, 1998; referred to the
Committee on the Judiciary; and then to the Committee on
Finance.]
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A BILL to amend and reenact section six, article two, chapter
twenty-one-a of the code of West Virginia, one thousand nine
hundred thirty-one, as amended; and to amend and reenact
section one, article one, chapter twenty-three of said code,
all relating to services provided by the attorney general to
the commissioner of the bureau of employment programs.
Be it enacted by the Legislature of West Virginia:
That section six, article two, chapter twenty-one-a of the
code of West Virginia, one thousand nine hundred thirty-one, as
amended, be amended and reenacted; and that section one, article
one, chapter twenty-three of said code be amended and reenacted,
all to read as follows:
CHAPTER 21A. UNEMPLOYMENT COMPENSATION.
ARTICLE 2. THE COMMISSIONER OF THE BUREAU OF EMPLOYMENT
PROGRAMS.
§21A-2-6. Powers and duties generally.
The commissioner is the executive and administrative head of
the bureau and has the power and duty to:
(1) Exercise general supervision of and make rules for the
government of the bureau;
(2) Prescribe uniform rules pertaining to investigations,
departmental hearings, and promulgate rules;
(3) Supervise fiscal affairs and responsibilities of the
bureau;
(4) Prescribe the qualifications of, appoint, remove, and
fix the compensation of the officers and employees of the bureau,
subject to the provisions of section ten, article four of this
chapter, relating to the board of review;
(5) Organize and administer the bureau so as to comply with
the requirements of this chapter and chapter twenty-three of this
code and to satisfy any conditions established in applicable
federal legislation;
(6) Make reports in such form and containing such
information as the United States department of labor may from
time to time require, and comply with such provisions as the
United States department of labor may from time to time find
necessary to assure the correctness and verification of such
reports;
(7) Make available to any agency of the United States
charged with the administration of public works or assistance
through public employment, upon its request, the name, address,
ordinary occupation and employment status of each recipient of
unemployment compensation, and a statement of the recipient's
rights to further compensation under this chapter;
(8) Keep an accurate and complete record of all bureau
proceedings; record and file all bonds and contracts and assume
responsibility for the custody and preservation of all papers and
documents of the bureau;
(9) Sign and execute in the name of the state, by "The
Bureau of Employment Programs", any contract or agreement with
the federal government, its agencies, other states, their
subdivisions, or private persons;
(10) Prescribe a salary scale to govern compensation of
appointees and employees of the bureau;
(11) Make the original determination of right in claims for
benefits;
(12) Make recommendations and an annual report to the
governor concerning the condition, operation, and functioning of
the bureau;
(13) Invoke any legal or special remedy for the enforcement
of orders or the provisions of this chapter and chapter twenty- three of this code;
(14) Exercise any other power necessary to standardize
administration, expedite bureau business, assure the
establishment of fair rules and promote the efficiency of the
service;
(15) Keep an accurate and complete record and prepare a
monthly report of the number of persons employed and unemployed
in the state, which report shall be made available upon request
to members of the public and press;
(16) Provide at bureau expense a program of continuing
professional, technical and specialized instruction for the personnel of the bureau;
(17) In addition to the authority granted to the
commissioner by section eighteen of this article and
notwithstanding anything to the contrary elsewhere in this code,
utilize any attorney regularly employed by the bureau or the
office of the attorney general to represent the commissioner, the
bureau or any of its divisions in any matter. In addition, the
commissioner, with the approval of the compensation programs
performance council, The attorney general is authorized to
retain appoint counsel for any purpose in the administration of
this chapter or in the administration of chapter twenty-three of
this code relating to the collection of any amounts due from
employers to the bureau or any of its divisions:. The
compensation programs performance council shall solicit proposals
from counsel who are interested in representing the commissioner,
the bureau or any of its divisions under the terms of this
subdivision. Thereafter, the compensation programs performance
council shall select such attorneys as it determines necessary to
pursue the collection objectives of this subdivision.
(A) Payment to any such retained counsel may either be by hourly or other fixed fee, or as determined by the court or
administrative law judge as provided for below. A contingency
fee payable from the amount recovered by judgment or settlement
for the commissioner, the bureau or any of its divisions is only
permitted, to the extent not prohibited by federal law, when the
assets of a defendant or respondent are depleted so that a full
recovery plus attorneys' fees is not possible;.
(B) In the event that any collections action, other than a
collections action against a claimant, initiated either by
retained counsel or other counsel on behalf of the commissioner,
the bureau or any of its divisions results in a judgment or
settlement in favor of the commissioner, the bureau or any of its
divisions, then the court or, if there was no judicial component
to the action, the administrative law judge, shall determine the
amount of attorneys' fees that shall be paid by the defendants.
or respondents to the retained or other counsel representing the
commissioner, the bureau or any of its divisions. If the court
is to determine the amount of attorneys' fees, it shall include
in its determination the amount of fee that should be paid for
the representation of the commissioner, the bureau or its divisions in pursuing the administrative component, if any, of
the action. The amount so paid shall be fixed by the court or
the administrative law judge in an amount no less than twenty
percent of its recovery. Any additional amount of attorneys'
fees shall be determined by use of the following factors:
(i) The counsel's normal hourly rate or, if the counsel is
an employee of the bureau or is an employee of the office of the
attorney general, such hourly rate as the court or the
administrative law judge shall determine to be customary based
upon the attorney's experience and skill level;
(ii) The number of hours actually expended on the action;
(iii) The complexity of the issues involved in the action;
(iv) The degree of risk involved in the case with regard to
the probability of success or failure;
(v) The overhead costs incurred by counsel with regard to
the use of paralegals and other office staff, experts, and
investigators; and
(vi) The public purpose served or public objective achieved
by the attorney in obtaining the judgment or settlement on behalf
of the commissioner, the bureau or any of its divisions;.
(C) Notwithstanding the provisions of paragraph (B) of this
subdivision, if the commissioner, bureau or any of its divisions
and the defendants or respondents to any administrative or
judicial action settle the action, then the parties may negotiate
a separate settlement of attorneys' fees to be paid by the
defendants or respondents above and beyond the amount recovered
by the commissioner, the bureau or any its divisions. In the
event that such a settlement of attorneys' fees is made, it must
be submitted to the court or administrative law judge for
approval;.
(D) Any attorney regularly employed by the bureau or by the
office of the attorney general may not receive any remuneration
for his or her services other than such attorney's regular
salary. Any attorneys' fees awarded for such an employed
attorney shall be payable to the commissioner attorney general;
(18) With the approval of the compensation programs
performance council created pursuant to section one, article
three of this chapter, to promulgate rules under which agencies
of this state shall not grant, issue, or renew any contract,
license, permit, certificate, or other authority to conduct a trade, profession, or business to or with any employing unit
whose account is in default with the commissioner with regard to
the administration of this chapter and with regard to the
administration of chapter twenty-three of this code. The term
"agency" includes any unit of state government such as officers,
agencies, divisions, departments, boards, commissions,
authorities, or public corporations. An employing unit is not in
default if it has entered into repayment agreements with the
appropriate divisions of the bureau and remains in compliance
with its obligations under the repayment agreements.
The rules shall provide that, before granting, issuing, or
renewing any contract, license, permit, certificate, or other
authority to conduct a trade, profession, or business to or with
any employing unit, the designated agencies shall review a list
or lists, provided by the appropriate divisions of the bureau,
of employers that are in default. If the employing unit's name
is not on the list, the agency, unless it has actual knowledge
that the employing unit is in default with a division of the
bureau, may grant, issue, or renew the contract, license, permit,
certificate, other authority to conduct a trade, profession, or business. The list may be provided to the agency in the form of
a computerized database or databases that the agency can access.
Any objections to such refusal to issue or renew shall be
reviewed under the appropriate provisions of this chapter or of
chapter twenty-three of this code, or both, whichever is
applicable. The rules provided for by this subdivision shall be
promulgated pursuant to the provisions of subdivisions (b) and
(c), section seven, article three of this chapter as if they were
rules being promulgated for the purposes of chapter twenty-three
of this code. The prohibition against granting, issuing, or
renewing any contract, license, permit, certificate, or other
authority under this subdivision are not operative until the
rules are promulgated and are in effect, except as provided in
subdivision (6), section eight, article three, chapter twenty-two
or otherwise by law.
The rules may be promulgated or implemented in phases so
that specific agencies or specific types of contracts, licenses,
permits, certificates, or other authority to conduct trades,
professions, or businesses will be subject to the rules beginning
on different dates. The presumptions of ownership or control contained in the division of environmental protection's surface
mining reclamation regulations promulgated under the provisions
of article three, chapter twenty-two of this code are not
applicable or controlling in determining the identity of
employing units who are in default for the purposes of this
subdivision. The rules shall also provide a procedure allowing
any agency or interested person, after being covered under the
rules for at least one year, to petition the council to be exempt
from the provisions of the rules. Rules subjecting all
applicable agencies and contracts, licenses, permits,
certificates, or other authority to conduct trades, professions,
or businesses to the requirements of this subdivision shall be
promulgated no later than the first day of January, two
thousand; and
(19) Deposit to the credit of the appropriate special
revenue account or fund, notwithstanding any other provision of
this code and to the extent allowed by federal law, all amounts
of delinquent payments or overpayments, interest and penalties
thereon, and attorneys' fees and costs collected under the
provisions of this chapter and chapter twenty-three of this code. The amounts collected shall not be treated by the auditor or
treasurer as part of the general revenue of the state.
CHAPTER 23. WORKERS' COMPENSATION.
ARTICLE 1. GENERAL ADMINISTRATIVE PROVISIONS.
§23-1-1. Commissioner of the bureau of employment programs;
compensation programs performance council; official
seal; continuation of authority of commissioner;
legal services; rules.
(a) The commissioner of the bureau of employment programs
appointed under the provisions of section one, article two,
chapter twenty-one-a of this code, has the sole responsibility
for the administration of this chapter except for such matters as
are entrusted to the compensation programs performance council
created pursuant to section one, article three, chapter twenty- one-a of this code. In the administration of this chapter, the
commissioner shall exercise all the powers and duties described
in this chapter and in article two, chapter twenty-one-a of this
code.
(b) The commissioner is authorized to promulgate rules and
regulations to
implement the provisions of this chapter.
(c) The commissioner shall have an official seal for the authentication of orders and proceedings, upon which seal shall
be engraved the words "West Virginia Commissioner of Employment
Programs" and such other design as the commissioner may
prescribe. The courts in this state shall take judicial notice
of the seal of the commissioner and in all cases copies of
orders, proceedings or records in the office of the West Virginia
commissioner of employment programs shall be equal to the
original in evidence.
(d) Pursuant to the provisions of article ten, chapter four
of this code, the commissioner of the bureau of employment
programs shall continue to administer this chapter until the
first day of July, one thousand nine hundred ninety-eight.
(e) The attorney general shall perform all legal services
required by the commissioner under the provisions of this
chapter. Provided, That in any case in which an application for
review is prosecuted from any final decision of the workers'
compensation appeal board to the supreme court of appeals, as
provided by section four, article five of this chapter, or in any
court proceeding before the workers' compensation appeal board,
or in any proceedings before the office of judges, or in any case in which a petition for an extraordinary writ is filed in the
supreme court of appeals or in any circuit court, in which such
representation shall appear to the commissioner to be desirable,
the commissioner may designate a regular employee of this office,
qualified to practice before such court to represent the
commissioner upon such appeal or proceeding, and in no case shall
the person so appearing for the commissioner before the court
receive remuneration therefor other than such person's regular
salary.
NOTE: The purpose of this bill is to remove some of the
authority the Commissioner of the Bureau of Employment Programs
has to use legal services from outside of the Office of the
Attorney General.
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language
that would be added.